Robertson v. Cockrell , 234 F.3d 890 ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
March 14, 2003
REVISED APRIL 11, 2003
UNITED STATES COURT OF APPEALS Charles R. Fulbruge III
FOR THE FIFTH CIRCUIT Clerk
_______________________
No. 00-10512
_______________________
MARK ROBERTSON,
Petitioner,
versus
JANIE COCKRELL, DIRECTOR, Texas
Department of Criminal Justice -
Institutional Division,
Respondent.
_________________________________________________________________
Appeal from the United States District Court
for the Northern District of Texas
_________________________________________________________________
Before KING, Chief Judge, and JOLLY, HIGGINBOTHAM, DAVIS, JONES,
SMITH, WIENER,* BARKSDALE, EMILIO M. GARZA, DEMOSS, BENAVIDES,
STEWART, DENNIS, and CLEMENT, Circuit Judges.
EDITH H. JONES, Circuit Judge:
In Penry v. Lynaugh, 492 U.S. 302 (1989) (“Penry I”), the
United States Supreme Court held that the first two “special issue”
*
Judge Wiener concurs in the judgment only.
interrogatories in the Texas capital sentencing instruction,1
though facially valid, see Jurek v. Texas, 428 U.S. 262 (1976),
failed to satisfy the constitutional requirement that a capital
defendant be entitled to present to his jury — and have it give
mitigating effect to — proffered evidence of childhood abuse.
Twelve years later, following Penry’s second trial, conviction, and
capital sentence, the Court held that the supplemental instruction
given at sentencing failed to cure this defect. Penry v. Johnson,
532 U.S. 782 (2001) (“Penry II”).
Before this en banc court, Mark Robertson, a victim of
childhood abuse and self-inflicted substance addiction, argues that
the same supplemental instruction given to his sentencing jury
similarly failed to cure the alleged defects of the Texas special
issues. This case constitutes a test, first, of the circumstances
under which the Texas special issues might fail to facilitate a
sentencing jury’s consideration of mitigating evidence and, second,
of the supplemental instruction’s ability to cure such a failure.
Because Robertson’s evidence — in quality and quantity —
does not match Penry’s, this court concludes that the statutorily
prescribed Texas special issues allowed Robertson’s jury to give
1
Acts 1973, 63rd Leg., R.S., ch. 426, art. 3, § 1, 1973 Tex.
Gen. Laws 1125, amended by Acts 1991, 72nd Leg., R.S., ch. 838, §
1, 1991 Tex. Gen. Laws 2898 (currently Tex. Code Crim. Proc., art.
37.071(b)).
2
mitigating effect to his proffered evidence; they do not,
therefore, stand in need of cure. Moreover, absent a presentation
of sufficient Penry-quality mitigating evidence, the trial court’s
recitation of this supplemental instruction cannot constitute
error.
I. BACKGROUND
On the evening of August 19, 1989, Robertson shot 19-
year-old Sean Hill, his friend and drug supplier, in the back of
the head with a .38 caliber firearm. At the time of the murder,
Hill was fishing behind his grandmother’s house in Dallas, Texas.
Leaving his dead friend’s body in the pond, Robertson entered the
house and killed Edna Brau, Hill’s grandmother, also with a single
shot, as she lay on her couch watching television. Robertson stole
Hill’s drugs and Brau’s purse, car and papers, and other personal
belongings. Several days later he fled to Las Vegas, Nevada, where
he was apprehended by local police.
Robertson was tried for these two murders and his
previous killing of a 19-year-old convenience store clerk during a
robbery. For the murders of the clerk and Hill, Robertson received
concurrent life sentences. For killing Brau, Robertson was found
guilty of capital murder. Acts 1973, 63rd Leg., R.S., ch. 426,
art. 2, § 1, Tex. Gen. Laws 1123, amended by Acts 1993, 73rd Leg.,
R.S., ch. 900, § 1.01 (currently Tex. Penal Code § 19.03(a)(2)).
3
Under 1989 Texas law, to impose a capital sentence the jury had to
answer two questions in the affirmative. First: Was the killing
deliberate? Second: Does the defendant pose a danger to others?
A negative answer for either special issue would result in a life
sentence.2 The court also gave the jury a supplemental instruction
in which it was told that Robertson could avoid a capital sentence
— even if the answers to both questions were affirmative — should
the jury find sufficient mitigating factors. To give effect to
such a determination, the trial court instructed the jury to change
its answer to either of the special issues from “Yes” to “No.”3
2
A third issue, inquiring whether the defendant was provoked
into capital murder, is unnecessary to parse here. Acts 1973, supra
n.1.
3
The supplemental instruction given to the jury reads as
follows:
You are instructed that you shall consider any
evidence, which, in your opinion, is mitigating.
Mitigating evidence is evidence that reduces the
defendant’s personal or moral culpability, or
blameworthiness, and may include, but is not limited to
an aspect of the defendant’s character, record,
background, or circumstances of the offense for which you
have found him guilty. Our law does not specify what may
or may not be considered as mitigating evidence. Neither
does our law provide a formula for determining how much
weight, if any, a mitigating circumstance deserves. You
may hear evidence, which in your judgment, has no
relationship to any of the special issues, but if you
find such evidence is mitigating under these
instructions, you shall consider the following
instructions of the court. You and each of you, are the
sole judges of what evidence, if any, is mitigating and
how much weight, if any, the mitigating circumstances, if
any, including those which have no relationship to any of
the special issues, deserves.
4
At sentencing the state presented evidence, inter alia,
relating to Robertson’s past criminal behavior, which included
serious vandalism at about age 12, taking a loaded handgun to
school at 13, car theft and destruction of property at 14,
marijuana possession at 15 and 18 (the second resulting in
conviction), an aggravated robbery conviction (using a baseball bat
and knife) at 18, and passing bad checks at 19. He had also
violated the terms of probation by failing to report, attend drug
counseling, and perform community service. The state also
presented extensive evidence relating to Robertson’s murder of the
convenience store clerk and of his bad prison behavior since
incarceration, including jail-cell arson and an escape attempt.
You are instructed that some mitigating evidence, if
any, may not be relevant to resolving the special issues
but may be relevant in determining whether or not the
defendant should be put to death.
In answering the special issues submitted to you
herein, if you believe that the State has proved beyond
a reasonable doubt that the answers to the special issues
are ‘Yes,’ and you also believe from the mitigating
evidence, if any, that the defendant should not be
sentenced to death, then you shall answer at least one of
the special issues ‘No’ in order to give effect to your
belief that the death penalty should not be imposed due
to the mitigating evidence presented to you. In this
regard, you are further instructed that the State of
Texas must prove beyond a reasonable doubt that the death
sentence should be imposed despite the mitigating
evidence, if any, admitted before you.
5
Robertson presented testimony at the punishment stage
from his two sisters, mother, stepfather, uncle, aunt, cousin,
former girlfriend, and friends of the family.
Robertson’s biological father was an alcoholic who would
often come home drunk and make the children stay awake at the foot
of his bed until he went to sleep; otherwise they would receive a
beating. Because Robertson was a baby when most of the abuse
occurred, he was spared, but as he grew, he received more abuse.
He witnessed both physical and verbal abuse of his mother and
siblings. Sometimes the father would beat the other children with
a board.
When Robertson was eight or nine years old, his mother
left his father, but she reclaimed the children six months later,
and his father subsequently disappeared. Robertson adapted to his
new home better than did his older siblings and began calling his
mother’s husband “father.” His mother and stepfather provided a
good home to him and treated him well. Family and friends
testified that Robertson was always respectful, polite, and
helpful. Robertson also fulfilled his promise to obtain a GED if
his parents would allow him to quit school. Robertson was
described by his mother as being “very smart.”
Robertson also offered evidence regarding his struggle
with drugs. He became addicted at the age of 14 or 15. Upon
6
catching him smoking marijuana, his parents sent him to a drug
rehabilitation clinic; they removed him ten days later, after he
threatened to run away. He and a companion committed a robbery in
November 1987 while high on cocaine. In 1988, when Robertson was
on bond for aggravated robbery, he entered another drug treatment
facility. Robertson almost completed the program, but left for
Florida when his counselor became ill and died. After Robertson
was arrested and convicted for violating the terms of his
probation, he checked himself into Charter Hospital for treatment
and completed the six-week program. He then went to the House of
Hope in Sherman, Texas, but stayed only about forty days.
Robertson also presented the testimony of several
witnesses who described him as having a good character and a lack
of a violent history. Despite having a psychiatrist available and
being given an additional four days during the punishment phase to
conduct psychological testing, Robertson presented no psychiatric
or psychological testimony.
For his murder of Brau, the jury answered both special
issues in the affirmative. Accordingly, the court entered a
sentence of death in February 1991.
On direct appeal the Texas Court of Criminal Appeals
affirmed his capital sentence. Robertson v. State, 871 S.W.2d 701
(Tex. Crim. App. 1993). Among other issues, Robertson argued that
7
the trial court erred by submitting the above-described
supplemental instruction in lieu of a proposed third special issue
regarding mitigating evidence. The court held that the
supplemental instruction fully comported with Penry I, the
controlling Supreme Court precedent, as it permitted, indeed
invited, the jury to consider all of the constitutionally relevant
evidence. The Supreme Court subsequently denied Robertson’s
petition for writ of certiorari. Robertson v. Texas, 513 U.S. 853
(1994).
Three years later, Robertson filed a petition for habeas
corpus relief in the state trial court. The court held an
evidentiary hearing and recommended that relief be denied. It
held, inter alia, that the jury instructions were adequate to
satisfy the constitutional demands of Penry I and related Supreme
Court cases. It also noted that this conclusion comported with a
host of post-Penry I Texas cases in which similar jury instructions
had been presented. In November 1998, the Texas Court of Criminal
Appeals relied upon the trial court’s findings to deny the
petition. Ex parte Robertson, writ no. 30,077-01 (Tex. Crim. App.
1998).
Robertson immediately filed a federal petition for relief
pursuant to 28 U.S.C. § 2254 and once again alleged constitutional
error arising from, inter alia, the jury instruction. The federal
8
district court dismissed Robertson’s § 2254 petition in March 2000,
concluding that Robertson could not demonstrate that the decisions
of the state courts were contrary to or involved an unreasonable
application of clearly established federal law, as decided by the
United States Supreme Court. Robertson filed a timely notice of
appeal and a request for a certificate of appealability (“COA”) in
the district court. The district court denied COA and Robertson
filed the instant application for a COA with this court.
The district court’s denial of relief was affirmed by
this court, Robertson v. Johnson, 234 F.3d 890 (5th Cir. 2000), and
he sought certiorari from the United States Supreme Court. In 2001
the Supreme Court decided Penry II, holding that the same set of
instructions had failed to give the jurors a “‘vehicle,’” Penry II,
532 U.S. at 787 (quoting Penry I, 492 U.S. at 326), by which they
might “‘consider and give effect to [a defendant’s mitigating]
evidence in imposing sentence.’” Penry II, 532 U.S. at 797
(quoting and adding emphasis to Penry I, 492 U.S. at 319). The
Supreme Court subsequently vacated this court’s decision and
remanded it for reconsideration. Robertson v. Johnson, 533 U.S.
901 (2001). In January 2002 a panel of this court concluded that
“there is no substantial difference between the jury instructions
on mitigation given in this case and those given in Penry II,”
granted Robertson’s motion for a COA and granted the writ,
9
requiring Robertson to be retried for the penalty phase of his
prosecution. Robertson v. Cockrell, 279 F.3d 1062 (5th Cir. 2002).
Upon the state’s motion, this court reheard the case en banc.
Robertson v. Cockrell, 300 F.3d 881 (5th Cir. 2002).
II. STANDARD OF REVIEW
This instant case is governed by the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”), as Robertson’s
habeas petition was filed after the effective date of the Act. 28
U.S.C. § 2254(d) (2002). Thus, the AEDPA applies to both his COA
application and his habeas petition. Lindh v. Murphy, 521 U.S.
320, 335-36 (1997); Nobles v. Johnson, 127 F.3d 409, 412-13 (5th
Cir. 1997).
To prevail on an application for a COA, an applicant must
make a
substantial showing of the denial of a constitutional
right, a demonstration that . . . includes showing that
reasonable jurists could debate whether. . . the petition
should have been resolved in a different manner or that
the issues presented were adequate to deserve
encouragement to proceed further.
Moore v. Johnson, 225 F.3d 495, 500 (5th Cir. 2000), cert. denied,
532 U.S. 949 (2001) (quotations and citations omitted). We grant
Robertson’s request for a COA, as he raises issues that are
debatable among reasonable jurists. Id. at 500.
To prevail on a petition for writ of habeas corpus, a
petitioner must demonstrate that the state court proceeding
10
“resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States.” 28 U.S.C.
§ 2254(d)(1); see Moore, 225 F.3d at 501. Before this court may
grant habeas relief under the “unreasonable application” clause,
the state court’s application must be more than merely incorrect.
Caldwell v. Johnson, 226 F.3d 367, 372 (5th Cir. 2000). The
appropriate inquiry is “‘whether the state court’s application of
clearly established federal law was objectively unreasonable.’”
Id. (quoting Williams v. Taylor, 529 U.S. 362, 409 (2000)).
III. DISCUSSION
In Penry I, the Supreme Court held that the Texas capital
sentencing framework, though facially valid, see Jurek, 428 U.S.
262, can fail, in certain circumstances, to satisfy the
constitutional requirement that a capital defendant is entitled to
present to his jury — and have it give effect to — mitigating
evidence. The case at bar constitutes a test of the evidence —
both in quality and quantity — that provokes such a failure.
The evidence that Johnny Paul Penry presented to his jury
upon sentencing for the rape, beating, and murder of Pamela
Carpenter consisted of extreme childhood abuse and mental
retardation. As a consequence of these disabilities, Penry
11
suffered from an inability “to control his impulses or to evaluate
the consequences of his conduct.” Penry I, 492 U.S. at 322.
The Court held that the Texas special issues failed Penry
in two ways. Most prominently, the first special issue (the
inquiry into the “deliberate[ness]” of the defendant’s acts) did
not give the jury the ability “to fully consider and give effect to
[Penry’s] mitigating evidence.” Id. at 315. The severity of
Penry’s impairment, the Court said, suggests a lack of culpability.
While “culpability” and “deliberate[ness]” are not mutually
exclusive categories, the Court was uncertain that, in the absence
of a statutory definition of “deliberately,” this particular
special issue gave full mitigating effect to evidence of a profound
moral impairment. Id. at 323.
The second special issue — inquiring into the defendant’s
“continuing threat to society” — also presented a challenge for
Penry’s peculiar evidence. While poor impulse control might be
relevant to the first inquiry (positively), it is also relevant to
the second, though negatively. In the words of the Court, Penry’s
evidence was a “two-edged sword”: Even as it diminished his
culpability, it magnified his dangerousness. Id. at 324.
The Supreme Court concluded that Penry was
constitutionally entitled to receive instructions that would
provide the jury with a vehicle for expressing its “reasoned moral
12
response” to the mitigating evidence and would permit it to give
effect to this evidence by declining to impose the death penalty.
Id. at 328.
The decision in Penry I placed Texas trial courts in a
difficult position when trying capital defendants. They could not
craft entirely new jury interrogatories, as the precise questions
had been written by the state legislature. Nor could they suspend
the trials in anticipation of legislative remediation, as the
legislature would not meet again until 1991 and its reaction was
unknown. Hoping to provide timely and Penry-compliant trials, the
courts generally chose to cure the perceived deficiencies in the
jury interrogatories by issuing, when appropriate, the supplemental
instruction described above. This the Texas courts did from the
pronouncement of Penry I to September 1, 1991, when the amended
statute went into effect.4
Robertson was tried in February 1991, during the hiatus
between Penry I’s pronouncement and the Texas legislature’s
4
The amended statute provides that an additional question be
placed to the sentencing jury:
Whether, taking into consideration all of the evidence,
including the circumstances of the offense, the
defendant’s character and background, and the personal
moral culpability of the defendant, there is a sufficient
mitigating circumstance or circumstances to warrant that
the sentence of life imprisonment rather than a death
sentence be imposed.
Tex. Code Crim. Proc., art. 37.0711 § 3(e). Added by Acts 1991,
72nd Leg., R.S., ch. 838, § 1, 1991 Tex. Gen. Laws 2898.
13
reaction. Because Robertson claimed that his mitigating evidence
came within the scope of Penry I, his jury was given the
supplemental instruction, as were Penry (upon retrial) and dozens
of other capital defendants during this period.
Ten years after Robertson’s trial, in another challenge
from Johnny Paul Penry, the Supreme Court held that the
supplemental instruction failed to give Penry’s jurors a
“‘vehicle,’” Penry II, 532 U.S. at 787 (quoting Penry I, 492 U.S.
at 326), by which they might “‘consider and give effect to [a
defendant’s mitigating] evidence in imposing sentence.’” Penry II,
532 U.S. at 797 (quoting and adding emphasis to Penry I, 492 U.S.
at 319). It held, moreover, that the structure of the instruction
— changing the answer to one of the special issues from a truthful
“Yes” to a false “No” in order to avoid imposing the death penalty
— forced conscientious jurors to violate their oath to answer the
interrogatories truthfully. Penry II, 532 U.S. at 798–801.
Robertson contends that the supplemental instruction
created a similar set of problems for his jury. First, it failed
to cure the problems noted in Penry I and underscored in Penry II,
inasmuch as it did not enable the jury to give mitigating effect to
his proffered evidence of childhood abuse and drug addiction.
Second, it rendered the jury instructions, taken as a whole, self-
contradictory, as the Court held in Penry II.
14
A. The Texas Special Issues Provided Robertson’s Jury with a
Vehicle by Which It Could Give Effect to His Mitigating
Evidence
The first question before this court is whether the Texas
special issues failed to provide Robertson’s sentencing jury with
an appropriate vehicle to give mitigating effect to his evidence of
childhood abuse and substance abuse. Based on this court’s
consistent interpretation of Penry I, we hold that the statutory
special issues alone were adequate to allow the jury to give effect
to Robertson’s mitigating evidence.
Following Penry I, petitioners convicted in Texas have
invoked that decision and requested additional instructional
vehicles for many different types of mitigating evidence, including
but not limited to subnormal intelligence,5 youth,6 troubled or
5
Smith v. Cockrell, 311 F.3d 661 (5th Cir. 2002); Blue v.
Cockrell, 298 F.3d 318 (5th Cir. 2002); Tennard v. Cockrell, 284
F.3d 591 (5th Cir.), vacated and remanded, 123 S. Ct. 70 (2002);
Jones v. Johnson, 171 F.3d 270 (5th Cir.), cert. denied, 527 U.S.
1059 (1999); Boyd v. Johnson, 167 F.3d 907 (5th Cir.), cert.
denied, 527 U.S. 1055 (1999); Harris v. Johnson, 81 F.3d 535 (5th
Cir.), cert. denied, 517 U.S. 1227 (1996); Mann v. Scott, 41 F.3d
968 (5th Cir. 1994), cert. denied, 514 U.S. 1117 (1995); Andrews v.
Scott, 21 F.3d 612 (5th Cir. 1994), cert. denied, 513 U.S. 1114
(1995); DeLuna v. Lynaugh, 890 F.2d 720 (5th Cir. 1989).
6
Turner v. Johnson, 106 F.3d 1178 (5th Cir.), cert. denied sub
nom. In re Turner, 521 U.S. 1146 (1997); Tucker v. Johnson, 115
F.3d 276 (5th Cir.), cert. denied, 522 U.S. 1017 (1997); Russell v.
Collins, 998 F.2d 1287 (5th Cir. 1993), cert. denied, 510 U.S. 1185
(1994); Cantu v. Collins, 967 F.2d 1006 (5th Cir. 1992), cert.
denied, 509 U.S. 926 (1993); Drew v. Collins, 964 F.2d 411 (5th
Cir. 1992), cert. denied, 509 U.S. 925 (1993); Bridge v. Collins,
963 F.2d 767 (5th Cir. 1992), cert. denied, 509 U.S. 925 (1993);
15
abused childhood,7 intoxication,8 substance abuse,9 head injury,10
White v. Collins, 959 F.2d 1319 (5th Cir. 1992); Wilkerson v.
Collins, 950 F.2d 1054 (5th Cir. 1992), cert. denied, 509 U.S. 921
(1993); Graham v. Collins, 950 F.2d 1009 (5th Cir. 1992) (en banc),
aff’d, 506 U.S 461 (1993); DeLuna, 890 F.2d 720.
7
Hernandez v. Johnson, 248 F.3d 344 (5th Cir.), cert. denied
sub nom. Hernandez v. Cockrell, 534 U.S. 1043 (2001); Emery v.
Johnson, 139 F.3d 191 (5th Cir. 1997), cert. denied, 525 U.S. 969
(1998); Davis v. Scott, 51 F.3d 457 (5th Cir.), cert. denied, 516
U.S. 992 (1995); Allridge v. Scott, 41 F.3d 213 (5th Cir. 1994),
cert. denied, 514 U.S. 1108 (1995); Jacobs v. Scott, 31 F.3d 1319
(5th Cir. 1994), cert. denied, 513 U.S. 1067, 1070 (1995); Lackey
v. Scott, 28 F.3d 486 (5th Cir. 1994), cert. denied, 513 U.S. 1086
(1995); Clark v. Collins, 19 F.3d 959 (5th Cir. 1994); Motley v.
Collins, 18 F.3d 1223 (5th Cir.), cert. denied, 513 U.S. 960
(1994); Madden v. Collins, 18 F.3d 304 (5th Cir. 1994), cert.
denied, 513 U.S. 1156 (1995); Russell, 998 F.2d 1287; Callins v.
Collins, 998 F.2d 269 (5th Cir. 1993); Drew, 964 F.2d 411; Lincecum
v. Collins, 958 F.2d 1271 (5th Cir.), cert. denied, 506 U.S. 957
(1992); Barnard v. Collins, 958 F.2d 634 (5th Cir. 1992), cert.
denied, 506 U.S. 1057 (1993); Graham, 950 F.2d 1009; Mayo v.
Lynaugh, 893 F.2d 683 (5th Cir.), modified sub nom. Mayo v.
Collins, 920 F.2d 251 (1990), cert. denied sub nom. Collins v.
Mayo, 502 U.S. 898 (1991).
8
Drinkard v. Johnson, 97 F.3d 751 (5th Cir.), cert. denied,
520 U.S. 1107 (1996); West v. Johnson, 92 F.3d 1385 (5th Cir.
1996), cert. denied, 520 U.S. 1242 (1997); Rogers v. Scott, 70 F.3d
340 (5th Cir. 1995), cert. denied sub nom. Rogers v. Johnson, 517
U.S. 1235 (1996); Briddle v. Scott, 63 F.3d 364 (5th Cir.), cert.
denied, 516 U.S. 1033 (1995); East v. Scott, 55 F.3d 996 (5th Cir.
1995); Nethery v. Collins, 993 F.2d 1154 (5th Cir. 1993), cert.
denied, 511 U.S. 1026 (1994); Sawyers v. Collins, 986 F.2d 1493
(5th Cir.), cert. denied, 508 U.S. 933 (1993); Bridge, 963 F.2d
767; Cordova v. Collins, 953 F.2d 167 (5th Cir.), cert. denied, 502
U.S. 1067 (1992).
9
Harris v. Cockrell, 313 F.3d 238 (5th Cir. 2002); Robison v.
Johnson, 151 F.3d 256 (5th Cir. 1998), cert. denied, 526 U.S. 1100
(1999); Tucker, 115 F.3d 276; Madden, 18 F.3d 304; James v.
Collins, 987 F.2d 1116 (5th Cir.), cert. denied, 509 U.S. 947
(1993); Callins, 998 F.2d 269; Drew, 964 F.2d 411; Barnard, 958
F.2d 634; DeLuna, 890 F.2d 720.
16
good character,11 mental illness,12 antisocial personality
disorders,13 and dyslexia.14
Penry I required such a vehicle only with regard to
evidence of diminished culpability arising from a combination of
extreme childhood abuse and mental retardation. This thus requires
— to ensure its “full mitigating effect” — a more capacious vehicle
than the Texas special issues afforded. With equal clarity,
however, the Court has also held that youth does not require
additional instructions: “We decide that there is no reasonable
likelihood that the jury would have found itself foreclosed from
10
Smith, 311 F.3d 661; Madden, 18 F.3d 304; Barnard, 958 F.2d
634.
11
Boyd, 167 F.3d 907; Turner, 106 F.3d 1178; Briddle, 63 F.3d
364; Lackey, 28 F.3d 486; Andrews, 21 F.3d 612; Clark, 19 F.3d 959;
Crank v. Collins, 19 F.3d 172 (5th Cir. 1994), cert. denied, 512
U.S. 1214 (1994); 998 F.2d 269; Jernigan v. Collins, 980 F.2d 292
(5th Cir. 1992), cert. denied, 508 U.S. 978 (1993); Bridge v.
Collins, 963 F.2d 767 (5th Cir. 1992), cert. denied 509 U.S. 925
(1993); Holland v. Collins, 962 F.2d 417 (1992), vacating 950 F.2d
169 (5th Cir. 1991), cert. denied, 509 U.S. 925 (1993); Black v.
Collins, 962 F.2d 394 (5th Cir.), cert. denied, 504 U.S. 992
(1992); Wilkerson, 950 F.2d 1054; Russell v. Lynaugh, 892 F.2d 1205
(5th Cir. 1989), cert. denied, 501 U.S. 1259.
12
Blue, 298 F.3d 318; Hernandez, 248 F.3d 344; Miller v.
Johnson, 200 F.3d 274 (5th Cir.), cert. denied, 531 U.S. 849
(2000); Robison, 151 F.3d 256; Lucas v. Johnson, 132 F.3d 1069 (5th
Cir.), cert. dismissed, 524 U.S. 965 (1998); Davis, 51 F.3d 457;
Allridge, 41 F.3d 213; Madden, 18 F.3d 304.
13
Smith, 311 F.3d 661; Davis, 51 F.3d 457; Demouchette v.
Collins, 972 F.2d 651 (5th Cir.), cert. denied, 505 U.S. 1246
(1992).
14
Madden, 18 F.3d 304.
17
considering the relevant aspects of petitioner’s youth.” Johnson
v. Texas, 509 U.S. 350, 368 (1993), aff’g 773 S.W.2d 322 (Tex.
Crim. App. 1989).
As to all the other types of mitigating evidence, the
pertinent inquiry is and has been, by what principle should the
line between Penry I and non-Penry I evidence be drawn? For ten
years, this court has subscribed to a test articulated by Judge
Garwood in response to Gary Graham’s assertion that his youth
presented Penry evidence. Was the criminal act “due to the
uniquely severe permanent handicaps with which the defendant was
burdened through no fault of his own”? Graham v. Collins, 950 F.2d
1009, 1029 (5th Cir. 1992) (en banc), aff’d, 506 U.S 461 (1993).
This formulation encompasses four principles found in Penry I:
voluntariness, permanence, severity, and attribution. Did the
defendant acquire his disability voluntarily or involuntarily? Is
the disability transient or permanent? Is the disability trivial
or severe? Were the criminal acts a consequence of this
disability?
These principles were and are readily apparent from the
Court’s opinion in Penry I. The principle of voluntariness is
found in the Court’s insistence on the defendant’s constitutional
right to a thorough assessment of his “culpability.” 492 U.S. at
319. (“Underlying Lockett v. Ohio, 438 U.S. 586 (1978) and Eddings
18
v. Oklahoma, 455 U.S. 104 (1982) is the principle that punishment
should be directly related to the personal culpability of the
criminal defendant.” Id.) Permanence is derived from the fixed
biological character of Penry’s evidence: “As a child, Penry was
diagnosed as having organic brain damage, which was probably caused
by trauma to the brain at birth.” Id. at 307; “Penry’s brain
damage was probably caused at birth . . . , but may have been
caused by beatings and multiple injuries to the brain at an early
age.” Id. at 308–309. Severity was divined from the objective
expert testimony that demonstrated the unique character of the
abuse he suffered, his limited cognitive faculties, and his
inability to learn from his mistakes. Id. at 309–10. And
attribution from the Court’s belief that Penry, like other
defendants whose “‘criminal acts . . . are attributable to a
disadvantaged background, or to emotional and mental problems, may
be less culpable than defendants who have no such excuse.’” Id. at
319 (quoting California v. Brown, 479 U.S. 538, 545 (1987)
(O’Connor, J., concurring)). Moreover, following the Supreme
Court’s example and admonition, this court has decided each
Penry-instruction entitlement claim “on the facts of th[e] case.”
Penry I, 492 U.S. at 315.
Each of our post-Penry I cases has approached the
evidentiary claim with the principles sketched above. In some
19
cases we stopped after voluntariness, because this threshold
requirement simply had not been met. In Barnard v. Collins, for
instance, the self-inflicted character of substance abuse gave no
occasion for engaging in further inquiry. 958 F.2d 634, 639 (5th
Cir. 1992). In Hernandez v. Johnson, the disability was
involuntary, but we stopped the inquiry after noting the transient
character of the affliction, because the petitioner’s mental
illness could be controlled by medication and treatment. 248 F.3d
344, 349 (5th Cir. 2001). In another, the disability was neither
voluntarily assumed nor transitory, but the petitioner’s dyslexia
was not so “uniquely severe” as to “rise to the level of a Penry
claim.” Madden, 18 F.3d at 308. And on yet another of Barnard’s
claims, that he had been beaten by his son-in-law with a tire iron
several months before the crime, this court concluded that the
meager evidence at bar (no expert testimony concerning brain damage
or psychological defects had been offered) failed “to raise an
inference ‘that the crime is attributable to the disability.’”
Barnard, 958 F.2d at 638 (quoting Graham, 950 F.2d at 1033).
Robertson nonetheless argues that childhood abuse is one
category of evidence that Penry I should categorically include, on
account of its debilitating character and the fact that severe and
prolonged abuse was among the disabilities that Penry himself
alleged. Moreover, Robertson contends, this court has
20
categorically excluded childhood abuse from the scope of Penry I.
Robertson’s reading of the Fifth Circuit cases is incorrect, and
his overall argument is inapposite to the facts.
Robertson’s misreading can be seen from a simple survey
of the cases in which the assertion of childhood abuse was
proffered as mitigating evidence. See supra n.7. In most, this
court acknowledged the possibility that the petitioner’s
unfortunate childhood might require a Penry vehicle, but could not
find the requisite severity or attribution. Barnard’s allegation
of a troubled childhood was soundly dismissed by this court, when
the only evidence he adduced was that his parents divorced when he
was four, he did not see his father until he was 13, lived with him
briefly, and then moved in with his uncle. But the court did not
dismiss out of hand the possibility that “the adverse effects of a
troubled childhood might well raise a Penry issue.” Barnard, 958
F.2d at 639; see also Davis v. Scott, 51 F.3d 457, 462 (5th Cir.
1995). The court addressed Robert Madden’s claim in much the same
way. He proved that his father abandoned him and his mother when
he was two years old, that his mother remarried when he was five,
and that his stepfather cared for him well. The court held, once
again, that if abuse causes psychological effects to which criminal
conduct is attributable, a Penry claim might exist, but the panel
expressed doubt that there was abuse, that this non-existent abuse
21
had any psychological effect, and that this non-existent
psychological effect led to his criminal act. Madden, 18 F.3d at
308. In Hernandez, a case in which the facts come close to
Penry’s, we again admitted the potential relevance of childhood
abuse, where the crime is attributable to the offense. 248 F.3d at
349. And, lest it be concluded that this calculus produces
possibility but not results, we recently concluded that Michael
Blue’s experience of parental abandonment, physical and sexual
abuse, minimal brain injury, schizophrenia, and resultant poor
impulse control — all supported by abundant evidence — satisfied
the Graham formulation. Blue v. Cockrell, 298 F.3d 318, 321–22
(5th Cir. 2002).
In sum, Fifth Circuit caselaw recognizes the possibility
that evidence of an abusive childhood might give rise to a Penry
claim. But to recognize the possibility is not to concede that any
history of childhood abuse rises to the level of Penry-type
evidence. In Penry I, the abuse included beatings on Penry’s head,
which according to an expert could have produced the brain damage
from which he suffered. Moreover, this evidence was inseparable
from the Court’s greater concern with Penry’s mental retardation
and poor impulse control. Childhood abuse alone is not
systematically discussed by Penry I in its relation to the Texas
special issues. This does not mean we can overlook the Court’s
22
holding, and as shown, our cases have not done so. But the un-
plumbed nature of the issue at the Supreme Court surely indicates
the appropriateness of fact-specific rather than categorical
analysis of childhood abuse under Penry I. Moreover, it is neither
logically nor empirically true that generic childhood abuse,
regardless of duration, type, or severity, bears the same
characteristics as mental retardation, or complies with the four
principles that this court articulated in Graham as the touchstones
for identifying Penry-type evidence.
Robertson’s case falls within our post-Penry I
jurisprudence inasmuch as, on a factual level, his claim of
childhood abuse is fairly vague and, with a lack of expert
testimony, exhibits no nexus to his brutal crimes. The evidence
involves Robertson’s early years living with an alcoholic father,
followed by a peaceful life with his mother and stepfather after he
became eight or nine years old. There is at most sketchy evidence
of beatings, but no evidence of experiences akin to Penry’s.
The paucity of evidence leads to the conclusion that the
statutory special issues were adequate to allow the jury to
effectuate the mitigating potential of Robertson’s evidence. This
evidence did not have a “major mitigating thrust” beyond either of
the special issues. Graham, 950 F.3d at 1027. Even though
Robertson’s experience of childhood abuse was involuntary, and
23
assuming (though this is unexplained by the evidence) that it was
permanent in effect, it was shown neither to be severe nor to have
any causal nexus with his crimes.
The same holds true for Robertson’s plea that the
mitigating effect of his drug addiction constitutes Penry evidence.
This argument is very nearly without merit, as it utterly fails to
satisfy the Graham formulation. Self-inflicted substance abuse is
patently neither involuntary nor permanent. Because Robertson’s
contention fails these two prongs, there is no need to ask whether
his substance abuse was severe or causally connected to his crime.
In each of the many cases in which petitioners have argued that
evidence of substance abuse mitigates their culpability, this court
has unequivocally dismissed the contention.15
It is also worthwhile to reiterate that Robertson’s
evidence of childhood abuse and drug addiction does not constitute
a “two-edged sword” — giving a strong basis for reduced
culpability, while nearly assuring a jury finding, on the second
interrogatory, that Robertson would remain dangerous to society.
15
See, e.g., Harris v. Cockrell, 313 F.3d 238; Robison, 151
F.3d 256; Tucker, 115 F.3d 276; Drinkard, 97 F.3d 751; West, 92
F.3d 1385; Rogers, 70 F.3d 340; Briddle, 63 F.3d 364; East, 55 F.3d
996; Madden, 18 F.3d 304; Nethery, 993 F.2d 1154; James, 987 F.2d
1116; Sawyers, 986 F.2d 1493; Drew, 964 F.2d 411; Bridge, 963 F.2d
767; Barnard, 958 F.2d 634; Cordova, 953 F.2d 167; DeLuna, 890 F.2d
720.
24
Such “atypical”16 evidence led the Supreme Court in Penry’s case to
conclude that the Texas statutory special issues were
constitutionally inadequate. This court has held, albeit on fact-
specific analysis, that evidence of childhood abuse is not “two-
edged” because the jury “would not have necessarily given only
16
As Judge Garwood explained for the en banc court:
We believe that what Penry represents is a set of
atypical circumstances of a kind that, quite
understandably, neither the Texas Court of Criminal
Appeals nor the Supreme Court in Jurek had in mind,
namely circumstances where the defense’s mitigating
evidence would have either no substantial relevance or
only adverse relevance to the second special issue.
Typically, evidence of good character, or of transitory
conditions such as youth or being under some particular
emotional burden at the time, will tend to indicate that
the crime in question is not truly representative of what
the defendant’s normal behavior is or may become over
time, and that the defendant may be rehabilitable so as
not to be a continuing threat to society. The core of
Jurek — which we cannot conclude has been abandoned — is
that the mitigating force of this kind of evidence is
adequately accounted for by the second special issue.
But in Penry the Court was faced for the first time with
a wholly different type of mitigating evidence. Not
evidence of good character, but of bad character; not
evidence of potential for rehabilitation, but of its
absence; not evidence of a transitory condition, but of
a permanent one; but nonetheless evidence which was
strongly mitigating because these characteristics were
due to the uniquely severe permanent handicaps with which
the defendant was burdened through no fault of his own,
mental retardation, organic brain damage and an abused
childhood. There was no way this type of evidence could
be given any mitigating force under the second special
issue. To recognize that, as Penry did, is not
necessarily to deny the validity of Jurek as it applies
to the more typical case.
Graham, 950 F.2d at 1029-30 (emphasis altered).
25
aggravating effect to [a petitioner’s]” evidence; this is so
because it “was able to consider in some manner [the petitioner’s]
relevant mitigating evidence . . . under Texas’ sentencing scheme.”
Motley v. Collins, 18 F.3d 1223, 1235 (5th Cir. 1994) (emphasis in
original); see Lackey, 28 F.3d at 489; James, 987 F.2d at 1121.
Compare Motley, 18 F.3d at 1235 (evidence of severe childhood abuse
did indeed suggest his future dangerousness, but was not the sort
of “two-edged” evidence identified by Penry I, because its effect
on the future dangerousness special issue was not solely
aggravating).17 The vague and inconclusive evidence submitted by
Robertson leads to the same result here.
Finally, regarding his substance abuse, even if this
court were willing to entertain the argument that Robertson’s
condition reduced his moral culpability (and thus might incline the
jury to render a favorable answer to the deliberateness issue), the
condition does not aggravate his exposure under the future
dangerousness issue. The reason for this is simply that addiction
is a treatable condition.18
17
Two panels of this court have, however, found that evidence
of childhood abuse is indeed “two-edged.” The first, Mayo v.
Lynaugh, 893 F.2d 683, was decided before Graham and has been
subsequently overturned, implicitly by Johnson, 509 U.S. 350,
explicitly in Motley, 18 F.3d at 1237. The second, Blue, 298 F.3d
318, concludes that “Blue produced substantial ‘double-edged’ Penry
type evidence.” Id. at 322.
18
See, e.g., Harris v. Cockrell, 331 F.3d at 241-43; West, 92
F.3d at 1405; Briddle, 63 F.3d at 377; Madden, 18 F.3d at 307;
26
B. Penry II Does Not Disturb the Fifth Circuit’s Post-Penry I
Case Law
Robertson also argues that Penry II requires this court
to review and revise the above-described post-Penry I juris-
prudence. This contention has two components. First, he contends
that this court has misinterpreted Penry I all along. Second,
whatever our past approach, Penry II expands the nature and scope
of evidence that requires modification of the pre-1991 statutory
scheme. We reject both contentions.
The second is easily dismissed. In Teague v. Lane, 489
U.S. 288 (1989), the Supreme Court barred the application of new
rules of law on federal habeas corpus review. Teague remains
applicable after the passage of the AEDPA. Horn v. Banks, 536 U.S.
266 (2002). Accordingly, in Penry I, the Court demonstrated that
its conclusion did not constitute a “new rule” of constitutional
law.19 In Penry II, the Court professed only to reiterate the
holding of Penry I. 532 U.S. at 797. Though one might argue — as
Robertson now does — that Penry II silently modifies Penry I and
encroaches upon Jurek, such an act is expressly forbidden by
Lackey, 28 F.3d at 487; James, 987 F.2d at 1121–23; Nethery, 993
F.2d at 1161; Cordova, 953 F.2d at 167.
19
“[I]n light of the assurances upon which Jurek was based, we
conclude that the relief Penry seeks does not ‘impose a new
obligation’ on the State of Texas.” Penry I, 492 U.S. at 319
(quoting Teague, 489 U.S. at 301).
27
Teague. Far be it from us to hold that the Court violated its own
principle; we do not so read Penry II or so hold.
The first component of Robertson’s argument requires
greater explanation.
Penry I reaffirmed the continuing constitutionality of
Texas’s statutory death penalty special issues, as the Court had
earlier construed them. See Jurek, 428 U.S. 262; Franklin v.
Lynaugh, 487 U.S. 164 (1988). On the other hand, Penry I held that
in some cases, the special issues did not give Texas capital juries
sufficient opportunity to consider and give mitigating effect to
proffered evidence. For the reasons articulated by this court’s en
banc decision in Graham, we concluded that Penry I was an exception
to Jurek, not Jurek to Penry I. Graham, 950 F.2d at 1027.
Any doubts this court might have harbored fled when
Graham’s logic was sustained — twice — in the Supreme Court’s next
term. The first instance occurred in the course of the Court’s
review of Graham, 506 U.S 461 (1993), where it described the
relationship between Penry I and Jurek as follows:
[W]e are not convinced that Penry could be extended to
cover the sorts of mitigating evidence Graham suggests
without a wholesale abandonment of Jurek and perhaps also
of Franklin v. Lynaugh. . . . As the dissent in Franklin
made clear, virtually any mitigating evidence is capable
of being viewed as having some bearing on the defendant’s
“moral culpability” apart from its relevance to the
particular concerns embodied in the Texas special issues.
28
Id. at 476 (citations omitted).20
The Supreme Court did so again much more emphatically in
Johnson v. Texas, 509 U.S. 350 (1993), aff’g 773 S.W.2d 322 (Tex.
Crim. App. 1989), a case on direct appeal, unconstrained by
Teague’s limit on habeas review. Rejecting Johnson’s argument that
his youth and immaturity provided mitigating evidence beyond the
scope of the Texas special issues, the Court reaffirmed the
“limited view of Penry,” 509 U.S. at 365:
In addition to overruling Jurek, accepting petitioner’s
arguments would entail an alteration of the rule of
Lockett and Eddings. Instead of requiring that a jury be
able to consider in one manner all of a defendant’s
relevant mitigating evidence, the rule would require that
a jury be able to give effect to mitigating evidence in
every conceivable manner in which the evidence might be
relevant.
Id. at 372.
Moreover, while it is inappropriate to ascribe undue
significance to denials of certiorari, it should at least be noted
that the Supreme Court has been loathe to disturb this court’s
interpretation of Penry I. In the decade from the en banc decision
in Graham (January 3, 1992) to the end of 2002, numerous
petitioners asked this court to overturn their capital sentences on
the basis of Penry-evidence claims. Of the 47 cases we addressed
20
The Court’s discussion was necessary to a determination
whether Graham sought a “new rule,” pursuant to Teague, in the
context of his habeas proceeding.
29
on the merits, this court applied the Graham interpretation of
Penry I in each and concluded that only one of these petitioners,
Michael Blue, had mustered evidence with a mitigating thrust beyond
the special issues. Blue, 298 F.3d 318. Of the remaining 46
petitioners, 42 petitioned the Supreme Court for writ of
certiorari.21 The Court dismissed the writ in one of them, Lucas
v. Johnson, 132 F.3d 1069, remanded the instant case for
reconsideration in light of Penry II and one other on separate
grounds,22 and denied the petitions in the remaining 39.23
Furthermore, in 14 of these 39 cases petitioners alleged child
21
One did not petition the Supreme Court for writ of
certiorari. East v. Scott, 55 F.3d 996. Two cases are so recent
that certiorari filing information is not yet available. Harris v.
Cockrell, 313 F.3d 238; Smith, 311 F.3d 661 (5th Cir., Nov. 4,
2002) (Smith was issued prematurely while this en banc case was
pending but it is not inconsistent herewith).
22
Tennard, 284 F.3d 591, vacated and remanded for
reconsideration in light of Atkins v. Virginia (122 S. Ct. 2242
(2002)), 123 S. Ct. 70 (2002).
23
Miller, 200 F.3d 274; Jones, 171 F.3d 270; Boyd, 167 F.3d
907; Robison, 151 F.3d 256; Lucas, 132 F.3d 1069; Emery, 139 F.3d
191; Turner, 106 F.3d 1178; Tucker, 115 F.3d 276; Drinkard, 97 F.3d
751; West, 92 F.3d 1385; Harris v. Johnson, 81 F.3d 535; Rogers, 70
F.3d 340; Briddle, 63 F.3d 364; East, 55 F.3d 996; Davis, 51 F.3d
457; Mann, 41 F.3d 968; Allridge, 41 F.3d 213; Jacobs, 31 F.3d
1319; Lackey, 28 F.3d 486; Andrews, 21 F.3d 612; Clark, 19 F.3d
959; Crank, 19 F.3d 172; Motley, 18 F.3d 1223; Madden, 18 F.3d 304;
Nethery, 993 F.2d 1154; James, 987 F.2d 1116; Sawyers, 986 F.2d
1493; Russell v. Collins, 998 F.2d 1287; Callins, 998 F.2d 269;
Jernigan, 980 F.2d 292; Demouchette, 972 F.2d 651; Cantu, 967 F.2d
1006; Drew, 964 F.2d 411; Bridge, 963 F.2d 767; Holland, 962 F.2d
417; Black, 962 F.2d 394; White, 959 F.2d 1319; Lincecum, 958 F.2d
1271; Barnard, 958 F.2d 634; Cordova, 953 F.2d 167; Wilkerson, 950
F.2d 1054.
30
abuse.24 A sizable number of these 14 present factual allegations
that are quite similar to Robertson’s. Certiorari was denied in
all of those cases. In light of the Supreme Court’s consistent
denial of Penry-based petitions, it would be unwarranted for us to
abandon our established precedent under the Graham framework.
In sum, Penry II makes no inroads on the Penry I – Jurek
framework that governed Texas law until the capital punishment
statute was amended in 1991. Penry I does not speculate on the
effect of the Texas statutory issues beyond the type of facts
adduced in Penry’s case. No question was before the Court in Penry
I or II on the general treatment of mitigating evidence under the
Texas law. Justice Kennedy concurred with the Penry II opinion, a
vote that would be unexpected had Penry II overruled Graham or
Johnson, as he was in the majority in Graham and wrote the Court’s
opinion in Johnson. Significantly, the Penry II dissent argues
only with the majority’s interpretation of the instruction and
contains no hint of concern that Graham or Johnson, to say nothing
of Jurek, might be up for reevaluation. Irrespective of the
serious Teague issue that would be raised by reading Penry II to
24
Hernandez, 248 F.3d 344; Emery, 139 F.3d 191; Davis, 51 F.3d
457; Mann, 41 F.3d 968; Allridge, 41 F.3d 213; Jacobs, 31 F.3d
1319; Lackey, 28 F.3d 486; Clark, 19 F.3d 959; Motley, 18 F.3d
1223; Madden, 18 F.3d 304; Russell v. Collins, 998 F.2d 1287; Drew,
964 F.2d 411; Lincecum, 958 F.2d 1271; Barnard, 958 F.2d 634.
31
undermine our post-Penry I jurisprudence, such a reading is simply
wrong.
This court therefore holds that our en banc Graham
formulation gives proper effect to Penry I. We emphasize our
confidence in the propriety of its continued use.
C. The Trial Court’s Presentation of the Supplemental Instruction
Does Not Constitute Error, Reversible or Otherwise
Robertson argues, in the alternative, that, even if his
mitigating evidence is not “constitutionally relevant,” the trial
court’s recitation of the supplemental instruction to his jury is
an error requiring vacatur of his capital sentence. We disagree.
In the absence of Penry-quality mitigating evidence, the
presentation of this instruction does not constitute error of any
sort.25 As a result, there is no need to reach a harmlessness
analysis. Nonetheless, because Robertson argues that the Supreme
Court has concluded that the recitation of this supplemental
instruction does indeed constitute error, a brief explanation for
this holding is necessary.
In Penry II, the Supreme Court declared that the
supplemental instruction is subject to two possible
interpretations. Penry II, 532 U.S. at 798. First, “it can be
25
Indeed, a contrary conclusion might well raise a Teague
problem, since no court, including the Supreme Court, has condemned
this instruction except in the Penry II context.
32
understood as telling the jurors to take Penry’s mitigating
evidence into account in determining their truthful answers to each
special issue.” Id. Alternatively, “it is possible to understand
the supplemental instruction as informing the jury that it could
simply answer one of the special issues ‘no’ if it believed that
mitigating circumstances” made the death penalty inappropriate.
Id. (quotations and citations omitted).
The Court found that under either interpretation the
supplemental instruction failed to cure the special issues’ flaws.
Construed as a vehicle to effectuate Penry’s mitigating evidence,
the supplemental instruction was insufficient because “none of the
special issues is broad enough to provide a vehicle for the jury to
give mitigating effect to the evidence of Penry’s mental
retardation and child abuse.” Id. Construed, alternatively, as a
“nullification instruction,” as Robertson tendentiously calls it,
it “made the jury charge as a whole internally contradictory, and
placed law-abiding jurors in an impossible situation.” Id. at 799.
The concerns that motivated the Supreme Court in Penry II
are not present in the case at bar. First, because Robertson’s
culpability-mitigating evidence is encompassed by the Texas special
issues, there is no need to provide an additional vehicle for it.
If anything, the supplemental instruction, under this
interpretation, provided Robertson with a more capacious vehicle
33
than was constitutionally warranted. Second, the supplemental
instruction did not render the jury charge potentially
contradictory. The jury was not forced into the position — as they
were in Penry II — of falsely answering “no” to the questions of
deliberateness or future dangerousness. The most that one could
say is that the supplemental instruction was redundant in this
case.
Absent the quality and quantity of mitigating evidence
necessary to raise a Penry claim, we decline to find that
recitation of the supplemental instruction to Robertson’s jury
constitutes error of any sort.
34
IV. CONCLUSION
Because Robertson failed to present to his sentencing
jury evidence with a major mitigating thrust beyond the scope of
the Texas special issues, this court concludes that the state’s
ultimate decision — that there was no reasonable likelihood of
Penry error — was not objectively unreasonable. Accordingly, we
AFFIRM the district court’s denial of Robertson’s petition.
AFFIRMED.
35
HIGGINBOTHAM, Circuit Judge, concurring:
I concur, but with respect I write separately to explain where
I cannot fully subscribe and to emphasize three points. First,
because the majority claims to state no new law for the circuit,
the district courts and bar need not divine what new wrinkle is
intended. The answer is none.
Second, it offers no new rationale beyond an effort to make
the whole of this surrealistic body of law more presentable by
asserting that it is the product of neutral judges engaged in an
exercise of logic. With deference, I cannot agree and think it
unwise to paint our work as anything more than it has been. The
path of Penry is only an example drawn from a circle of cases
linked by solution-problem-solution-problem. We have in short
order moved from Cabana v. Bullock,26 which allows the Supreme Court
of Mississippi to find that a defendant sentenced to die on
conviction by a jury of felony murder acted with the
constitutionally required intent, when the convicting jury was
never asked to face the issue, to Ring v. Arizona,27 concluding that
the finding must be made by the jury. And recently this “law
logic” moved from the principle that a jury must be able to
26
474 U.S. 376 (1986); Bullock v. Cabana, 784 F.2d 187 (5th
Cir. 1986).
27
536 U.S. 584 (2002).
consider and give expression to retardation as a mitigating factor
to the principle that retarded persons cannot be executed at all.
It is no surprise that Texas wisely moved to the common sense
solution of asking the jury an additional question: whether,
considering all the mitigating evidence, death should be imposed.
Leaving aside why this sudden tolerance of jury discretion, this
case is part of a small set left in an eddy, missing the tide in
both directions. But this set of cases remains and we are
obligated to state the rules for their decision as best we can,
which brings me to my third point.
In our efforts to decide if a jury could give effect to the
major thrust of mitigating evidence by its answering whether the
defendant would be dangerous in the future, we have danced close to
categorical characterization of evidence of disabilities as
transient or permanent, when the true question is whether there is
evidence in the record, including any expert testimony, from which
a jury might conclude that the disability was permanent, child
abuse for example. The very term “constitutionally relevant
evidence” is misleading. A defendant is entitled to have all his
mitigating evidence heard and to have a jury with the means to
express its worth in its verdict. Penry evidence, as it is
sometimes called, is a subset. It is not logic but judicial hubris
to pronounce as a matter of law that even the most severe child
37
abuse creates only a transient condition. The majority dismisses
the defendant’s effort to push his evidence of mitigation into the
Penry ring as contending for a categorical treatment of all child
abuse. Fair enough; however, the majority also pushes in the
opposite direction. We must be careful that this push not lead us
to categorically exclude classes of mitigating evidence such as
child abuse. That result would be the result of neither logic nor
law in the proper sense. While, for example, we are well within
our compass to treat alcohol or drug use which can wreak permanent
damage as legally irrelevant by drawing upon a principle of law,
such as refusing to consider disability voluntarily induced, it is
not our role to make the medical judgment that a condition is
transient or permanent. And we ought not attempt to judge the
imprint of child abuse, with its myriad levels of intensity with
victims with myriad degrees of vulnerability to the abuse, beyond
asking if there is sufficient evidence of causality and permanence
to allow it to go to the jury. It follows from the principle of
law that the Penry trigger requires a permanent, not transient
condition that the jury must be told of this principle to enable it
to resolve conflicting evidence of permanence tendered in
mitigation. And this surely follows from Apprendi’s stanching of
the shrinking of the role of the jury,28 as in Cabana v. Bullock.
28
Apprendi v. New Jersey, 530 U.S. 466 (2000).
38
We need not subscribe to jury nullification to accept the reality
that our efforts to define what is mitigating, to guide the
discretion of the jury, has inherent limits. What is sufficiently
mitigating will find its ultimate meaning in the collective
judgment of the jury verdict – a core meaning that does not
transcend cases but has meaning only for the defendant in the dock.
That is no more than the realization of the principle that the
accused is to be judged as an individual. And to be faithful to
that principle the judicial and legislative hand must accept that
reality. Consistent with Apprendi, if the jury’s decision of life
or death is not to be trusted with some genre of criminal activity,
the solution is to not make it a capital crime. It is not to
attempt to guide or remove from jury discretion more than we have
already.
I must disagree with the majority’s summary dispatch of the
second wing of the issue that brought this case to the en banc
court, that Penry aside, the nullification instruction impeded the
jury’s consideration of Robertson’s mitigating evidence.
As the Boyde court put it: “[T]he proper inquiry in such a
case is whether there is a reasonable likelihood that the jury has
applied the challenged instruction in a way that prevents
consideration of constitutionally relevant evidence.”29 And to the
29
Boyde v. California, 494 U.S. 370, 380 (1998).
39
point, “constitutionally relevant evidence” here includes all
mitigating evidence.
To be sure, Robertson faces a tough standard in pressing this
contention. The court footed this standard firmly in the reality
of a trial, warning against legalistic post-verdict parsing of the
charge and insisting that its adequacy be judged in its full
setting. I am ultimately not persuaded by this contention, but it
is not without force, and I come to this conclusion only after
reading the charge and the closing arguments many times. The jury
was instructed that “some mitigating evidence, if any, may not be
relevant to resolving the special issues but may be relevant in
determining whether or not the defendant should be put to death.”
The jury was next told “if they have answered yes to the questions
believing that the state has proved beyond a reasonable doubt that
the answers to the special issues are yes and also believe from the
mitigating evidence, if any, that the defendant should not be
sentenced to death, that they should answer no.” Because there was
no Penry mitigating evidence, answering whether Robertson would
probably be dangerous in the future, would give Robertson’s
mitigating evidence all the effect it was constitutionally due.
The trial court and every court thereafter through the remand to
the panel by the Supreme Court proceeded on the assumption that
Penry evidence had been presented and the nullification instruction
40
was needed, or at least that its need was sufficiently uncertain
that it was prudent to give it. And of course the case was argued
to the jury in that manner: that the jury should answer the
questions and if it had answered them yes it should then change a
yes answer to a no if it thought any mitigating evidence led them
to doubt that the death penalty should be imposed. Asking the jury
to separate its consideration of mitigating evidence and future
dangerousness is confusing because it is in answering the question
that the jury is to consider mitigating evidence. This mixture of
legal doctrines in context, however, did not to my mind pose a
reasonable likelihood that the jury was unable to give expression
to Robertson’s evidence, despite the fog it brought to the
courtroom. I reach this conclusion because the common sense of the
jury is deployed here free of the burdens of the legal distinctions
driven by our efforts to balance the twin and conflicting ends of
Furman30 – even-handed treatment across cases in which each accused
receives individualized consideration of his mitigating
circumstances.
30
408 U.S. 238 (1972).
41
HAROLD R. DEMOSS, JR., Circuit Judge, DISSENTING:
The majority opinion stands essentially on two premises:
first, that the decision of the Supreme Court in Penry v. Johnson,
129 S. Ct. 1910(2001)(“Penry II”) does not “shed any light” on our
decision here in Robertson; and second, under our “consistently
applied” Fifth Circuit case law interpreting the Supreme Court
decision in Penry v. Lynaugh, 109 S. Ct. 2934(1989)(“Penry I”)
Robertson’s mitigating evidence fails to pass the test in “quality
and quantity” of “Penry type mitigating evidence” and the
supplemental instruction on mitigating evidence and the
nullification instruction actually submitted to the trial court in
Robertson’s trial can be ignored. Because I am convinced that both
of these premises are erroneous, I respectfully dissent and write
to explain my reasons why.
THE PENRY I CONNECTION
In June of 1989, the Supreme Court of the United States handed
down its decision in “Penry I” which reversed the affirmance of
Penry’s death sentence by this Circuit Court, and the federal
district court, in federal habeas proceedings. The Supreme Court
stated:
1. “The jury was never instructed that it could consider
the evidence offered by Penry as mitigating evidence and
that it could give mitigating effect to that evidence in
imposing sentence.” Id. at 2947; and,
2. “The state conceded at oral argument in this Court
that if a juror concluded that Penry acted deliberately
and was likely to be dangerous in the future, but also
concluded that because of his mental retardation he was
not sufficiently culpable to deserve the death penalty,
that juror would be unable to give effect to that
mitigating evidence under the instructions given in this
case.” Id. at 2951.
The Supreme Court then held:
“In this case, in the absence of instructions informing
the jury that it could consider and give effect to the
mitigating evidence of Penry’s mental retardation and
abused background by declining to impose the death
penalty, we conclude that the jury was not provided with
a vehicle for expressing its ‘reasoned moral response’ to
that evidence in rendering its sentencing decision.” Id.
at 2952.
In July of 1990, John Paul Penry was retried before a jury in
Texas state criminal district court. He was again convicted of
capital murder and the jury again assessed his punishment as death.
This case was automatically appealed to the Texas Court of Criminal
Appeals. In February of 1995, that Court handed down its decision
at 903 S.W.2d 715 (Tex. Crim. App. 1995). One of the points of
error raised in Penry’s appeal was that “the trial court submitted
an improper jury instruction on mitigating evidence.” Id. at 764.
In overruling this point of error and affirming his death penalty,
the Court of Criminal Appeals stated:
However, defendants occasionally proffer mitigating
evidence that is not relevant to the special issues or
that has relevance to the defendant’s moral culpability
beyond the scope of the special issues. Penry v.
Lynaugh, 492 U.S. at 329, 109 S.Ct. at 2952. In such a
case, the jury must be given a special instruction in
43
order to allow it to consider and give effect to such
evidence. Id. The trial court in the instant case
submitted the following charge:
You are instructed that when you deliberate on
the questions posed in the Special Issues, you
are to consider mitigating circumstances, if
any, supported by the evidence presented in
both phases of the trial, whether presented by
the State or the defendant. A mitigating
circumstance may include, but is not limited
to, any aspect of the defendant’s character
and record or circumstances of the crime which
you believe could make a death sentence
inappropriate in this case. If you find that
there are any mitigating circumstances in this
case, you must decide how much weight they
deserve, if any, and therefore, give effect
and consideration to them in assessing the
defendant’s personal culpability at the time
you answer the special issue. If you
determine, when giving effect to the
mitigating evidence, if any, that a life
sentence, as reflected by a negative finding
to the issue under consideration, rather than
a death sentence, is an appropriate response
to the personal culpability of the defendant,
a negative finding should be given to one of
the special issues.
We have already held that a nullification instruction
such as this one is sufficient to meet the constitutional
requirements of Penry v. Lynaugh. Coble v. State, 871
S.W.2d 192, 206-207 (Tex. Crim. App. 1993), cert. filed.
903 S.W.2d at 765.
John Paul Penry then sought state habeas relief, which was
denied and then filed for a federal habeas corpus relief after the
enactment of the Antiterrorism and Effective Death Penalty
Act(“AEDPA”). In both the federal district court and in our Court,
Penry contended that the instruction given by his state trial court
44
quoted above did not satisfy the requirements of Penry I; but in
Penry v. Johnson, 215 F.3d 504, 508-09 (5th Cir. 2000), our Court
held as follows: “We agree with the district court that the Texas
Court of Criminal Appeals’s holding that the challenged instruction
was constitutional was not an unreasonable application of clearly
established law, namely Penry I.”
John Paul Penry applied for a writ of certiorari to the U.S.
Supreme Court which was granted and in June of 2001, the Supreme
Court issued its decision in “Penry II”.31 In Penry II, the Supreme
Court made a variety of comments which are pertinent to our
discussion in this case. First of all, the Supreme Court in Penry
II pointed out explicitly what its holding in Penry I did and did
not hold:
Penry I did not hold that the mere mention of ‘mitigating
circumstances’ to a capital sentencing jury satisfies the
Eighth Amendment. Nor does it stand for the proposition
that it is constitutionally sufficient to inform the jury
that it may ‘consider’ mitigating circumstances in
deciding the appropriate sentence. Rather, the key under
Penry I is that the jury be able to ‘consider and give
effect to [a defendant’s mitigating] evidence when
imposing sentence.’ 492 U.S. at 319, 109 S. Ct. 2934
(emphasis added). For it is only when the jury is given
31
The Supreme Court decision in Penry II is the first occasion
on which the Supreme Court addressed compliance by Texas trial
courts in capital cases with the mandates of Penry I. More
particularly, the decision in Penry II is the first occasion on
which the Supreme Court addressed the sufficiency of a supplemental
instruction on mitigation and a “nullification instruction” as
employed by the Texas trial courts.
45
a ‘vehicle for expressing its reasoned moral response’ to
that evidence in rendering its sentence decision Penry I
492 U.S. at 328, 109 S. Ct. 2934, that we can be sure
that the jury has treated the defendant as an uniquely
individual human being and has made a reliable
determination that death is the appropriate sentence.
121 S. Ct. at 1920 (citation omitted).
From these comments of the Supreme Court in Penry II, it seems
absolutely clear that the Supreme Court is telling us that Penry I
requires not only that the jury must consider mitigating evidence,
but also that there must be a vehicle by which the jury can give
effect to that mitigating evidence if it so chooses.
Likewise it is equally clear from the Supreme Court’s language
in Penry II that the “nullification instruction” employed in John
Paul Penry’s retrial does not pass muster constitutionally as such
a vehicle by which the jury can express its consideration of
mitigating evidence. In support of this conclusion, I point out
the following statements by the Supreme Court in Penry II:
1. “Rather it [the “nullification instruction”] made the
jury charge as a whole internally contradictory, and
placed law-abiding jurors in an impossible situation.”
Id. at 1921.
2. “The supplemental instruction therefore provided an
inadequate vehicle for the jury to make a reasoned moral
response to Penry’s mitigating evidence.” Id. at 1922.
46
3. “While these comments reinforce the State’s construction
of the supplemental instruction, they do not bolster our
confidence in the jurors’ ability to give effect to
Penry’s mitigating evidence in deciding his sentence.
Rather, they highlight the arbitrary way in which the
supplemental instruction operated, and the fact that the
jury was essentially instructed to return a false answer
to a special issue in order to avoid a death sentence.”
Id. at 1923.
4. “Although the supplemental instruction made mention of
mitigating evidence, the mechanism it purported to create
for the jurors to give effect to that evidence was
ineffective and illogical.” Id. at 1924.
5. “Any realistic assessment of the manner in which the
supplemental instruction operated would therefore lead to
the same conclusion we reached in Penry I: ‘[A]
reasonable juror could well have believed that there was
no vehicle for expressing the view that Penry did not
deserve to be sentenced to death based upon his
mitigating evidence.’” Id.
6. “Thus to the extent the Texas Court of Criminal Appeals
concluded that the substance of the jury instructions
given at Penry’s second sentencing hearing satisfied our
47
mandate in Penry I, that determination was objectively
unreasonable.” Id.
The last quotation from Penry II is critically material to our
decision here in Robertson because the real issue before us is
whether the decision of the Texas Court of Criminal Appeals, which
held that the supplemental instructions given at Robertson’s
penalty phase hearing before the state trial court were consistent
with the constitutional requirements in Penry I, can be now
affirmed in light of Penry II.
APPLICABILITY TO ROBERTSON
In January of 1991, Mark Robertson was convicted of the
offense of capital murder by a jury in the state district court of
Dallas County; and after the same jury affirmatively answered the
two statutory special issues submitted to it, the court sentenced
Robertson to death in February 1991. At Robertson’s punishment
hearing, a supplemental instruction was given to the jury by the
state district court. The complete text of this supplemental
instruction is set forth as footnote 3 in the majority opinion
supra; and for clarity sake, I will refer to the first two
paragraphs of that footnote 3 as the supplemental instruction on
mitigation (hereinafter referred to as “SIOM”)and the third
paragraph of that footnote 3 as the nullification instruction
(hereinafter referred to as “NULI”). It is not clear from the
48
state trial record in Robertson’s case precisely where and how the
SIOM and NULI came to be used in Robertson’s trial. It is
absolutely clear, however, that the state prosecutor raised no
objection to the use of either of the SIOM or the NULI. On the
other hand, Robertson’s defense counsel interposed a clear
objection to the use of the NULI because it did not provide a
sufficient vehicle for the jury to use in expressing its views on
mitigating evidence as required by Penry I. Defense counsel for
Robertson also proffered a separate jury issue to be submitted, in
addition to the statutory issues on punishment, which was very
similar in language and content to the statute which the Texas
Legislature adopted later on in its 1991 Session and made effective
as of September 1, 1991.32 The state district court overruled
Robertson’s objection to the NULI and rejected the proffer of the
separate special issue on mitigation.
Because I think the textual content of the SIOM and the NULI
used in Robertson’s trial are critically important to a
determination of the ultimate issue which we address in this
appeal, I want to highlight some of the aspects of these
instructions. First of all, note that the SIOM states that the
jury “shall consider” (not “may consider”) any evidence which in
32
This new statute is quoted in full in footnote 4 on page 13
of the majority opinion supra.
49
the jury’s opinion is “mitigating.” The instruction gives a
definition of mitigating evidence, which is broad but includes “an
aspect of the defendant’s character, record, background, or
circumstances of the offense for which you have found him guilty.”
The SIOM goes on to advise the jury that “[o]ur law does not
specify what may or may not be considered as mitigating evidence;”
and that the members of the jury “are the sole judges of what
evidence, if any, is mitigating and how much weight, if any, is
mitigating and how much weight, if any, including those which have
no relationship to any of the special issues deserves.” Finally,
the SIOM in Robertson’s case instructs the jury that they may find
some evidence to be mitigating even though it “has no relationship
to any of the special issues;” and that some evidence “may not be
relevant to resolving the special issues but may be relevant in
determining whether or not the defendant should be put to death.”
The language and content of the SIOM in Robertson’s case
strikes me as a good faith effort to satisfy the mandate from the
Supreme Court in Penry I that the jury be instructed to “consider”
all mitigating evidence. The majority seems to intimate that the
SIOM goes further in permitting consideration of mitigating
evidence than was constitutionally required. However, as I pointed
out earlier, the prosecutor raised no objection of any kind
whatsoever to the trial court’s use of this SIOM. And that leads
50
me to conclude that at the time of Robertson’s trial in January of
1991, the state’s prosecutors did not read Penry I as requiring any
particular “quantity or quality” of mitigating evidence as a
threshold before the Penry I mandate would come into play.
In regard to the NULI in Robertson’s case, it is very similar
in concept, though not identical in language, to the nullification
instruction used in the retrial of Penry. Both are structured on
the premise that for the jury to give effect to its conclusion that
life in prison is a more appropriate punishment than death, the
jury must give a false “no” answer to one of the statutory special
issues to which it has already answered “yes.” As the Supreme
Court explicitly concluded in Penry II, such a “vehicle” is
constitutionally not acceptable.
Robertson’s conviction and death sentence were automatically
appealed to the Texas Court of Criminal Appeals which affirmed
Robertson’s conviction and death sentence in a published opinion,
Robertson v. State, 871 S.W.2d 701 (Tex. Crim. App. 1993), and was
issued on December 8, 1993. Among other errors asserted on this
appeal, Robertson complained that the trial court erred in failing
to submit a special issue concerning mitigation which he proffered
rather than the “nullification” charge actually given; and that the
judgment of the trial court is unconstitutional because the jury
was not given an adequate vehicle to express their personal moral
51
reasoned response to appellant’s culpability as required by
Penry I. In rejecting these complaints, the Texas Court of
Criminal Appeals (1) relied on an earlier decision in Fuller v.
State, where the Court held that a “nullification charge was
adequate to avoid the constitutional infirmity condemned by Penry”;
and, (2) stated that “[t]he Supreme Court has not required that a
particular vehicle be employed to allow for the jury’s
consideration of mitigating evidence, only that the jury be
provided with a vehicle.” 871 S.W.2d at 710-711. Thereafter,
Robertson’s application for a writ of certiorari to the United
States Supreme Court was denied on October 3, 1994. Robertson v.
Texas, 115 U.S. 155 (1994).
In April of 1997, Robertson filed his application for state
habeas corpus in the same court that had convicted and sentenced
him. Among other grounds of relief sought by Robertson in his
state habeas petition, the sixth ground stated:
whether the trial court’s submission of a nullification
instruction instead of a Penry special issue violated the
Eighth and Fourteenth Amendments to the United States
Constitution.
The same state judge who presided at Robertson’s original trial
handled the state habeas proceeding, conducted a hearing and
entered extensive findings of fact and conclusions of law. In
rejecting Robertson’s contentions about the sixth ground of error,
52
the state habeas judge entered the following paragraphs in his
order:
82. The Court notes that applicant’s attorneys at trial
requested a separate instruction regarding mitigating
circumstances. (Tr.:282). This request was denied by
this Court. (Tr.:282; R.LXV:59). Instead, this Court
submitted a nullification instruction to the jury
regarding mitigating evidence that instructed the jurors
to answer one of the special issues “no” if they felt
that mitigating circumstances warranted a life sentence
rather than the death penalty. (Tr.:313-314). On direct
appeal the Court of Criminal Appeals ruled that this
“nullification” charge was sufficient to meet the
commands of Penry because it provided the jury with a
vehicle to allow consideration of mitigating evidence.
Robertson, 871 S.W.2d at 711. As support for its ruling,
the Court of Criminal Appeals cited Fuller v. State, 829
S.W.2d 191, 209 (Tex. Crim. App. 1992), cert. denied
U.S. , 113 S. Ct. 2418, 124 L. Ed. 2d 640 (1993).
.....
84. The Court finds that the nullification charge given
to the jury in the punishment phase of applicant’s trial
allowed the jury to consider any mitigating evidence in
assessing the death penalty because it instructed the
jury to consider mitigating evidence if there was any, it
explained the nature of mitigating evidence, and it
authorized the jury to answer one of the special issues
“no” if the jury felt that there was sufficient
mitigating evidence to warrant a sentence of life
imprisonment rather than a death sentence. The Court
therefore concludes as a matter of law that the charge
given meets the requirements of Penry, and this Court’s
refusal to give a separate mitigation issue did not
violate the Eighth and Fourteenth Amendments.
The Court’s Findings of Fact and Conclusions of Law, filed June 26,
1998, District Court No. 5, Dallas County, Texas.
In an appeal of the state habeas ruling, the Texas Court of
Criminal Appeals, affirmed Robertson’s conviction and sentence,
53
without a published opinion, for the reasons stated by the state
habeas district court.
In November, 1998, Robertson filed a petition for federal
habeas corpus relief pursuant to 28 U.S.C. §2254. Among other
grounds for relief Robertson again alleged that the trial court
submission of a nullification instruction and refusal to create a
third special issue on the effect of mitigating evidence
constituted constitutional error. Robertson’s petition was
referred to a magistrate judge for report and recommendation and in
March, 2000, the magistrate judge recommended that Robertson’s
petition be denied and dismissed. With regard to Robertson’s
claims about the use of the nullification instruction and the trial
court’s refusal to create a third special issue on the effect of
mitigating evidence, the magistrate concluded that Robertson could
not demonstrate that the decisions of the state courts in approving
those actions were “contrary to or involved an unreasonable
application of clearly established federal law as decided by the
United States Supreme Court.” The federal district court adopted
the magistrate judge’s recommendations and dismissed Robertson’s
petition. The district court also denied Robertson’s request for
a certificate of appealability (COA) and Robertson moved our Court
for grant of a COA on several grounds. One of the issues on which
Robertson sought COA from this Court was that the trial court’s
54
decision to instruct the jury that it could answer one of the
statutory special issues “No” (thus precluding the assessment of
the death penalty) if persuaded that mitigating evidence made the
death penalty inappropriate, combined with the trial court’s
refusal to give the jury a third special issue expressly addressing
the effect of mitigating evidence, violated his Eighth and
Fourteenth Amendment rights as set forth in Penry I v. Lynaugh.
This Court denied Robertson’s request for COA on this issue because
he failed to identify any portion of Penry I or any other
applicable Supreme Court authority that would render the approach
taken by the Texas Courts in general or his state habeas court in
particular, contrary to or an unreasonable application of clearly
established federal law.
Robertson then petitioned the Supreme Court of the United
States for a writ of certiorari. On July 17, 2001, the Supreme
Court granted the writ of certiorari, vacated the decision of this
Court and remanded Robertson’s case “to the United States Court of
Appeals for the Fifth Circuit for further consideration in light of
Penry v. Johnson, 532 U.S. 782 (2001) (Penry II).” On remand from
the Supreme Court the original panel determined that there was no
substantial difference between the nullification instruction in
Penry II and the nullification instruction in Robertson and
therefore that the decision of the Supreme Court in Penry II
55
required us to grant Robertson’s request for COA on that issue and
vacate the district court’s judgment denying Robertson’s
application for a federal writ of habeas corpus and remand
Robertson’s case to the district court with instructions to grant
Robertson’s habeas corpus relief unless the State of Texas, within
a reasonable time, granted Robertson a new trial on the issue of
punishment. A majority of this Court voted to reconsider that
panel opinion en banc.
WHAT WE NEED TO DECIDE
The majority opinion has difficulty in describing precisely
what we should be deciding on the en banc reconsideration of
Robertson’s appeal. They furnish us with three iterations of the
critical issues in this case:
A. “This case constitutes a test, first, of the
circumstances under which the Texas special issues might
fail to facilitate a sentencing jury’s consideration of
mitigation evidence and, second, of the supplemental
instruction’s ability to cure such a failure.” Supra, at
lines 39-42.
B. “The case at bar constitutes a test of the evidence-both
in quality and quantity-that provokes such a failure.”
Supra, at lines 223-224.
56
C. “The first question before this court is whether the
Texas special issues failed to provide Robertson’s
sentencing jury with an appropriate vehicle to give
mitigating effect to his evidence of childhood abuse and
substance abuse. Based on this court’s consistent
interpretation of Penry I, we hold that the statutory
special issues alone were adequate to allow the jury to
give effect to Robertson’s mitigating evidence.” Supra,
at lines 295-301.33
With all due respect to my colleagues in the majority, these
are the wrong questions which elicit the wrong result based on the
wrong precedent.
In framing these questions as it does, the majority makes
clear its preoccupation (which borders almost on an obsession) with
(i) exploring the “quantity and quality” of Robertson’s mitigating
33
In addition to a great host of Fifth Circuit cases, the
majority cites four Supreme Court cases in support of its reasoning
and conclusions: Jurek v. State of Texas, 428 U.S. 262 (1976);
Franklin v. Lynaugh, 487 U.S. 164 (1988); Graham v. Collins, 506
U.S. 461 (1993); and Johnson v. Texas, 509 U.S. 350 (1993). All of
these Supreme Court decisions dealt with criminal cases that were
tried in the state district courts before the decision by the
Supreme Court in Penry I. Neither Jurek nor Franklin nor Graham
involved any kind of supplemental instruction on mitigation nor any
kind of nullification instruction. Johnson did not contain any
form of nullification instruction; but it did contain a very
“bobtail” form of supplemental instruction which simply advised the
jury that in considering the special issues, they could consider
evidence they heard during trial, be it mitigating or aggravating
in nature.” 509 U.S. at 355.
57
evidence (ii) in order to compare Robertson’s mitigating evidence
with Penry’s mitigating evidence for the purpose of (iii) deciding
that the Texas Statutory Special Issues were sufficient by
themselves to permit the jury to “consider and give effect to”
Robertson’s mitigating evidence (iv) without the need “for the
supplemental instruction on mitigation and the nullification
instruction.”34 In my view, the majority’s conceptual analysis is
flawed for the following reasons:
1. There has never been any debate, controversy, or
issue, either in the state trial court or in the
Texas Court of Criminal Appeals or in the state
habeas court, as to the sufficiency of Robertson’s
mitigating evidence to require, under Penry I, that
something more than the statutory special issues be
given to the jury in regard to mitigating evidence.
The state prosecutor made no objection whatsoever
to the giving of the SIOM and NULI as they were
actually given at Robertson’s trial.
2. In effect, the text of the SIOM and the NULI removes from
the table any controversy about the “quantity and
quality” of Robertson’s mitigating evidence. The jury
was expressly instructed that it was the sole judge of
34
In their enthusiasm to limit the applicability of Penry I,
the majority states:
“Penry I required such a vehicle only with regard to
evidence of mental-retardation-induced impulse-controlled
deficiency.” Supra, at line 310 on page 17.
A computer check of the text of the Penry I opinion reveals that
the word “only” is never used in any phrase which purports to say
when a “vehicle” is required. Likewise, the majority’s use of the
word phrase “mental-retardation-induced impulse-controlled
deficiency” never appears at all in Penry I.
58
what constituted mitigating evidence and that the jury
could determine that some evidence had a mitigating
effect even though that evidence had no relevance to the
jury’s answer to either one of the two statutory special
issues.
3. When the Texas Court of Criminal Appeals affirmed the
trial court’s use of the SIOM and the NULI, that Court
did so on the basis that those additional instructions
were required by the language of the Supreme Court in
Penry I and the content of those instructions satisfied
the mandates of Penry I.
4. Finally, I think the majority errs in relying on whatever
may be “this Court’s consistent interpretation of Penry
I to decide the critical issues in this case.” After
Congress adopted AEDPA, it is settled law that on our
review under §2254 we look only to decisions of the
United States Supreme Court to determine whether a state
court decision was consistent with “clearly established
federal law.” The only Supreme Court decision which the
state district trial court, the Texas Court of Criminal
Appeals, and the state habeas court looked to in
determining the validity or not of the use of the SIOM
and NULI in Robertson’s case was the decision of the U.S.
Supreme Court in Penry I; and none of those courts cited
as authority any of the Fifth Circuit cases which the
majority lists in its compendious footnotes about our
circuit’s “consistent interpretation of Penry I.”
THE REAL QUESTIONS
In my judgment the two critical issues for decision before
this en banc court are:
1. Did either of the three rulings of the state
district court, the Texas Court of Criminal Appeals
or the state habeas court, each of which approved
the submission of the SIOM and the NULI to
Robertson’s jury in the penalty phase, constitute
“a decision that was contrary to or involved an
unreasonable application of clearly established
federal law as determined by the Supreme Court of
the United States” in Penry I?
59
2. In making the foregoing determination, what effect, if
any, do we give to the holding of the Supreme Court in
Penry II that similar rulings by the state courts in a
similar case were objectively unreasonable as defined in
AEDPA?
Because I’m truly amazed at the cavalier manner in which the
majority dismisses the applicability of the Supreme Court holding
in Penry II to the decision making in this case, I want to address
the second question first. When the Supreme Court remands a case
to our Court with instructions to reconsider that case “in light
of” the decision of the Supreme Court in another recent case, I
think we are duty bound to: (i) make sure we understand what
portion of that other recent case “sheds light on” the case being
remanded and (ii) apply that portion in our reconsideration. That
is particularly true under the circumstances of Robertson’s case.
The panel opinion for which Robertson sought a writ of certiorari
to the Supreme Court had denied Robertson’s motions for a
certificate of appealibility on all issues, including specifically
the issue about the supplemental instruction on mitigation
evidence, because we concluded that the state courts had correctly
determined that those supplemental instructions satisfied the
requirements of Penry I. The Supreme Court granted certiorari and
vacated that panel decision. From just those actions I have to
conclude that the Supreme Court is telling us we reached the wrong
result in the panel decision. And, when the Supreme Court vacates
60
and remands this case to us, I am amazed that our en banc Court
would have the audacity to turn around and reach the same result
the Supreme Court just vacated.
Under the heading “The Trial Court’s Presentation Of The
Supplemental Instruction Does Not Constitute Error Reversible or
Otherwise” Supra, at lines 595-596, the majority disposes of the
applicability of the Supreme Court’s decision in Penry II to the
circumstances here in Robertson with two very conclusionary
statements:35
1. “The concerns that motivated the Supreme Court in
Penry II are not present in the case at bar.”
Supra, at lines 628-629.
2. “Absent the quality and quantity of mitigating evidence
necessary to raise a Penry claim, we decline to find that
recitation of the supplemental instruction to Robertson’s
jury constitutes error of any sort.” Supra, at lines 642-
645.
Both of these conclusionary statements simply ignore that portion
of the Supreme Court decision in Penry II which, in my judgment is
most relevant and significant to our decision making in Robertson:
“Thus, to the extent the Texas Court of Criminal Appeals
concluded that the substance of the jury instructions
given at Penry’s second sentencing hearing satisfied our
35
In its enthusiasm to limit the applicability of Penry II, the
majority states: “In Penry II, the Court professed only to
reiterate the holding of Penry I.” Citing 532 U.S. at 797. I have
scoured page 797 and there is nothing thereon that can be
reasonably construed as a “profession” by the Supreme Court in
Penry II that it is “only reiterating” its holding in Penry I.
61
mandate in Penry I, that determination was objectively
unreasonable. ... Although the supplemental instruction
made mention of mitigating evidence, the mechanism it
purported to create for the jurors to give effect to that
evidence was ineffective and illogical.”
121 S. Ct. at 1923.
If the conclusions of the Texas Court of Criminal Appeals were
“objectively unreasonable” in Penry II then I can see no basis for
arriving at an opposite conclusion here in Robertson. The
similarities between the original state court trials in both
Penry II and Robertson are legion:
1. Both cases were tried in state court after the
decision of the U.S. Supreme Court in Penry I and
before the effective date of the new statutory
provision adopted by the Texas Legislature in
September, 1991;
2. In each case a supplemental instruction on mitigation
which included a nullification instruction was submitted
to the jury without objection by the state prosecutor;
3. In both cases, the nullification instruction required the
jury to “return a false answer to a special issue in
order to avoid a death sentence;”
4. In both cases, the state courts determined that the use
of the supplemental instruction and the nullification
instruction were consistent with the mandates of the
Supreme Court in Penry I;
5. In neither case did the state courts rely upon or even
consider the “quality and quantity” of the mitigating
evidence as a factor in deciding to submit the
supplemental instruction or the nullification
instruction; and,
6. In neither case did the state courts rely upon any cases
decided by the Fifth Circuit as precedential authority
62
for their decision to submit the supplemental instruction
and the nullification instruction.
Given these similarities it is a simple and easy call for me to say
that in “light of the Supreme Court holding in Penry II,” the state
courts decisions here in Robertson, that concluded that the use of
the supplemental instruction and the nullification instruction in
Robertson’s trial were consistent with the mandate of the Supreme
Court in Penry I, were likewise objectively unreasonable; and the
holding in Penry II to that effect is applicable and controlling
here in Robertson. In my view, the majority errs grievously in
relying upon other Fifth Circuit decisions in other state habeas
cases under §2254 in which the original state criminal trials
occurred before the date of the Supreme Court holding in Penry I
and in which there were neither a supplemental instruction on
mitigation nor a nullification instruction actually given.
In reaching this conclusion, I have no intention of casting
aspersions of any kind on the body of Fifth Circuit case law which
started with our en banc decision in Graham v. Collins, 950 F.2d
1009 (1992) and has been construed, applied, and extended as
described in the majority opinion. Graham and many of its progeny
clearly involved a death penalty case tried in a Texas court before
the Supreme Court decision in Penry I and in which no supplemental
instruction on mitigation or nullification instruction was
submitted to the jury. In my view Graham and its progeny have no
63
application to death penalty trials like Robertson’s which took
place after the Supreme Court’s decision in Penry I and which
contained express supplemental instructions on mitigation and
nullification instructions. Conversely, for the same reasons I do
not read the Supreme Court decision in Penry II as having any
impact on Graham and its progeny.
CONCLUSION
For the foregoing reasons I respectfully dissent from the
holding and the analysis expressed by the majority. I would follow
the lead of the Supreme Court in Penry II and vacate the decision
of the district court denying Robertson’s petition for habeas
corpus relief and remand the case to the district court with
instructions to grant such relief unless the State of Texas grants
Robertson a retrial of his punishment issues or reduces his
sentence to one less than death.
ENDRECORD
64
CARL E. STEWART, Circuit Judge, DISSENTING:
I agree with the thrust of Judge DeMoss’s and Judge Dennis’s dissents; however, I write
separately in order to clarify my perspective on this difficult case. The facts at issue are adequately
set out in the majority opinion and the dissenting opinion by Judge DeMoss. I will not recite them
here.
The nullification instruction at the core of our review in this case is nearly identical to the
nullification instruction at issue before the Supreme Court in Penry v. Johnson, 532 U.S. 782 (2001)
(Penry II). The Supreme Court, in Penry II explained that the nullification instruction “was
objectively unreasonable.” 532 U.S. at 804. In Penry v. Lynaugh, 492 U.S. 302 (1989) (Penry I), the
Supreme Court held that “Penry had been sentenced to death in violation of the Eighth Amendment
because his jury had not been adequately instructed with respect to mitigating evidence.” 532 U.S.
at 786 (citing Penry I, 492 U.S. 302 (1989)). The majority reads the Supreme Court’s decisions in
Penry I and Penry II, to require a separate threshold analysis of the quality and quantity of mitigating
evidence before considering the infirm instruction. In so doing, the majority missed the core of the
analysis in the Penry cases and based its conclusions on what it considers to be the Supreme Court’s
silence. In the Penry decisions, the Supreme Court was clear, however, that it is for the jury, not this
Court, to evaluate the quality and quantity of mitigation evidence in the sentencing phase of a capital
trial. For this reason, I respectfully dissent from the majority opinion.
In Robertson, the State concedes that “under Penry II, the state courts’ conclusion that the
supplemental instruction satisfied Penry I is objectively unreasonable.”36 The Penry II Court
explained that the nullification instruction at issue was inadequate to correct the constitutional
violation of Penry I because it “provided an inadequate vehicle for the jury to make a reasoned moral
response to Penry’s mitigating evidence.” Penry II, 532 U.S. at 800. To analyze the constitutional
infirmity here, the Supreme Court instructs this Court to determine only whether the nullification
instruction provided an adequate “vehicle for the jury to make a reasoned moral response” to
Robertson’s mitigating evidence. Neither conclusion requires this Court to first speculate whether
as a matter of law, the mitigating evidence will have a negating effect on the jury. The Supreme
Court has been clear that the nullification instruction at issue is objectively unreasonable to meet the
standard of providing an adequate vehicle for the jury to consider mitigation evidence. Nonetheless,
the majority contends that because the Supreme Court has been silent regarding any analytical
requirement beyond the specific facts involved in Penry I, our court is free to derive from Penry I an
additional step in the analysis. The majority then inserts this additional step into the Supreme Court’s
analysis in Penry II, and determines that this Court must filter the mitigating evidence presented
before it reaches the jury.
36
In its Brief for Janie Cockrell on Remand From the United
States Supreme Court in light of Penry v. Johnson, the State
explains that the state court determined that Robertson’s Eighth
Amendment rights were not violated “approving the supplemental
instruction as an adequate vehicle” citing Penry I. The State then
conceded: “It is now true that under Penry II, the state courts’
conclusion that the supplemental instruction satisfied Penry I is
objectively unreasonable.” Appellee’s Brief at 12.
66
It is not for this Court to stand in the shoes of the jury in the sentencing phase of a capital trial
and determine the quality and quantity of the mitigation evidence placed before them. It is our
responsibility, however, to ensure that “the jury is given a ‘vehicle for expressing its reasoned moral
response to that evidence in rendering its sentencing decision.’” Penry II, 532 U.S. at 797 (quoting
Penry I, 492 U.S. at 328). When we do so, “we can be sure that the jury ‘has treated the defendant
as a uniquely individual human being’ and has made a reliable determination that death is the
appropriate sentence.’” Id. By determining that Robertson’s evidence of childhood abuse was not
significant enough to mitigate a sentence of death, we are sua sponte writing between the lines of
Penry II, thereby neglecting our primary responsibility made clear in Penry II – i.e., to ensure that
the jury is able to give “a reasoned moral response to that evidence.” Id.
The majority seeks to prevent the jury from determining whether Robertson’s childhood
abuse is mitigating and whether to give it any weight in sentencing. In concluding that the
nullification instruction at issue “provided an inadequate vehicle for the jury to make a reasoned
moral response to Pentry’s mitigating evidence,” the Supreme Court noted “the jury’s ability to
consider and give effect to Penry’s mitigating evidence was still ‘shackled and confined within the
scope of the three special issues.’” Penry II, 532 U.S. at 798-800 (quoting Penry, 215 F.3d at 514
(Judge Dennis dissenting)). The standard for evaluating Robertson’s claim of error in the giving of
the nullification instruction is, “whether there is a reasonable likelihood that the jury has applied the
challenged instruction in a way that prevent[s] the consideration of constitutionally relevant
evidence.” Id. at 800 (quoting Boyde v. Cal., 494 U.S. 370, 380 (1990) (emphasis added)). This
standard includes all mitigating evidence, not merely the special variety which the majority maintains
67
can give rise to a Penry error. As the Supreme Court has instructed, “the Eighth Amendment requires
that the jury be able to consider and give effect to all relevant mitigating evidence.” Boyde, 494 U.S.
at 377 (explaining that the California jury instruction at issue did not preclude consideration of all
non-crime-related evidence). It is not up to the Court to determine the strength of the mitigating
evidence, the Court’s only responsibility is to ensure that the instructions did not prevent the jury
from considering the evidence. Yet, the majority has done just that.
By first determining that the objectively unreasonable nullification instruction posed no error
because Robertson’s evidence does not rise to the level of so-called “Penry-quality mitigating
evidence,” the majority is preventing the jury from adequately considering the evidence. The jury
charge in this case, as in Penry II, with the inclusion of the nullification instruction was so confusing
that “[t]here is at the very least, ‘a reasonable likelihood that the jury ... applied the challenged
instruction in a way that prevent[ed] the consideration’” of Robertson’s mitigating evidence. Penry
II, 532 U.S. at 800. Neither in Penry I nor in Penry II, did the Supreme Court instruct that it is within
the province of a reviewing or trial court to first speculate, before jury deliberations, whether the
mitigating evidence presented by the Defendant during the sentencing phase of a capital trial is
powerful enough to negate the jury’s findings. We should not gut Penry II by ignoring the
nullification instruction issue in Robertson which the Supreme Court remanded to this Court and by
considering only the evidence presented in Penry I.
Nowhere in its analysis of the nullification instruction in the Penry cases did the Supreme
Court balance the mitigating evidence against the aggravating factors presented before the jury as
the majority is want to do here. The majority distinguishes Robertson’s evidence by presenting the
68
proposition that because there is a so-called causal relationship between Penry’s mental retardation
and extreme childhood abuse, this mitigating evidence is stronger than Robertson’s.37
Notwithstanding that the Supreme Court never based its analysis on a causal relationship between
Penry’s childhood abuse and his mental retardation, the type of the mitigating evidence is inapposite
to the analysis. The mere fact that there is mitigating evidence is what prevails. See Williams v.
Taylor, 529 U.S. 362 (2000).
The majority fails to acknowledge that since Penry I, the Supreme Court has more clearly
defined the contours of a defendant’s constitutional right to present mitigating evidence during the
sentencing phase of trial. See Williams v. Taylor, 529 U.S. 362 (2000). In Williams, “Williams had
been severely and repeatedly beaten by his father, that he had been committed to the custody of the
social services bureau for two years during his parents' incarceration (including one stint in an
abusive foster home), and then, after his parents were released from prison, had been returned to his
parents' custody.” 529 U.S. at 395. In Williams, the Supreme Court considered Williams’s
mitigating evidence so significant to the sentencing process of his capital murder trial, that the
Supreme Court upheld his ineffective assistance of counsel claim against his attorney for not
37
Although there is some indication in the recitation of facts
in Penry I that his mental retardation may have been caused by a
traumatic blow to his head as a child, the Supreme Court
consistently separates Penry’s mental retardation from his
childhood abuse in its analysis in both Atkins and Penry II. See
Atkins v. Virginia 122 S. Ct. 2242, 2244 (2002) (“[I]n the 13 years
since we decided Penry I, the American public, legislatures,
scholars, and judges have deliberated over the question whether the
death penalty should ever be imposed on a mentally retarded
criminal.”); Penry II, 532 U.S. at 787 (“Penry had offered
extensive evidence that he was mentally retarded and had been
severely abused as a child.”).
69
presenting evidence of his abusive childhood as mitigating evidence for the jury to consider. Id. In
Williams, the Supreme Court was not concerned with whether the childhood abuse resulted in
mental illness. Rather than engage in the process of balancing the gravity of the mitigating evidence
against the aggravating factors, the Supreme Court was only concerned that the jury was prevented
from considering such evidence in the sentencing phase of the capital trial by defense counsel.
The theme of the majority’s opinion is that Penry II only applies to a similar type of
mitigating evidence premising it on the fact that Penry was mentally retarded. Even if the type of
mitigating evidence matters to the analysis, the Supreme Court has been slowly chiseling away
classes of Defendants eligible for capital punishment. The first analytical comment the Supreme
Court espoused on Penry’s mental retardation was in Atkins v. Virginia. 122 S. Ct. 2242, 2244 (2002)
(“[I]n the 13 years since we decided Penry I, the American public, legislatures, scholars, and judges
have deliberated over the question whether the death penalty should ever be imposed on a mentally
retarded criminal.”). In Atkins, the Supreme Court held that imposing the death penalty on the
mentally retarded is in violation of the Eighth Amendment. Id. at 2252. If we take as correct the
majority’s interpretation that Penry II applies only in circumstances where the mitigating evidence
is abuse that results in mental retardation or similar mental aberration, then Penry II cannot be
applied in any capital sentencing context consistent with Atkins v. Virginia, 122 S. Ct. 2242 (2002).
Surely, this is not the outcome the Supreme Court intended when it decided Atkins. If this were true,
then Atkins stands to overturn Penry II, unless Penry I and Penry II are interpreted to broadly include
independent evidence of childhood abuse.
70
The decision in Penry II and the State’s concession conclusively show that the nullification
instruction at issue in Robertson’s trial did not give the jury an appropriate vehicle to consider his
mitigation evidence. The majority errs in failing to heed the essence of the Supreme Court’s remand
to this Court and is perpetuating the effects of the constitutionally problematic jury charge. For these
reasons I respectfully dissent.
ENDRECORD
71
DENNIS, Circuit Judge, dissenting:
Because today’s decision is counter to the explicit commands
of the Supreme Court in Penry v. Lynaugh, 492 U.S. 302 (1989)
(Penry I), and is inconsistent with the logic which underlies that
decision, I respectfully dissent.
I.
The majority denies petitioner Mark Robertson habeas corpus
relief because it believes the Texas Special Issues provided the
jury an adequate vehicle for registering its moral response to
Robertson’s evidence of childhood abuse in making its death penalty
determination.38 In Penry I, however, the Supreme Court held that
the special issues are insufficiently capacious to encompass the
kind of evidence Robertson offers here, making today’s decision
contrary to Supreme Court precedent. Moreover, even assuming
arguendo that the Court left “unplumbed” the issue of whether
evidence of childhood abuse alone is adequately considered within
the special issues, Penry I’s reasoning dictates finding the
special issues insufficient here. While Robertson did receive a
“nullification instruction” that was not received by Penry, Penry
38
There is no dispute that evidence of substance abuse is
adequately encompassed within the special issues. Harris v.
Cockrell, 313 F.3d 238, 242 (5th Cir. 2002).
72
v. Johnson, 532 U.S. 782, 803-04 (2001) (Penry II), makes clear
this instruction did not resolve the Penry I problems present here.
A. The Penry Decisions
In Penry I, the Supreme Court held that (1) “at the time
Penry’s conviction became final, it was clear from [Lockett v.Ohio,
438 U.S. 586 (1978),] and [Eddings v. Oklahoma, 455 U.S. 104
(1982),] that a State could not, consistent with the Eighth and
Fourteenth Amendments, prevent the sentencer from considering and
giving effect to evidence relevant to the defendant’s background or
character or to the circumstances of the offense that mitigate
against imposing the death penalty,” 492 U.S. at 318; (2) “[t]he
rule Penry [sought]—that when such mitigating evidence [of his
mental retardation and abused childhood] is presented, Texas juries
must . . . be given jury instructions that make it possible for
them to give effect to that mitigating evidence in determining
whether the death penalty should be imposed—is not a ‘new rule’
under Teague because it is dictated by Eddings and Lockett,” id. at
318-19; (3) “[u]nderlying Lockett and Eddings is the principle that
punishment should be directly related to the personal culpability
of the criminal defendant,” id. at 319; (4) “[I]t is not enough
simply to allow the defendant to present mitigating evidence to the
sentencer. The sentencer must also be able to consider and give
effect to that evidence in imposing sentence,” id.; (5) “[i]n order
to ensure reliability in the determination that death is the
73
appropriate punishment in a specific case, the jury must be able to
consider and give effect to any mitigating evidence relevant to a
defendant’s background and character or the circumstances of the
crime,” id. at 328; and (6) therefore, “in the absence of
instructions informing the jury that it could consider and give
effect to the mitigating evidence of Penry’s mental retardation and
abused [childhood] background by declining to impose the death
penalty, . . . the jury was not provided with a vehicle for
expressing its reasoned moral response to that evidence in
rendering its sentencing decision,” id. at 328. (Internal
quotations and citations omitted).
Thus, the Supreme Court in Penry I agreed with Penry’s
argument “that his mitigating evidence of mental retardation and
childhood abuse has relevance to his moral culpability beyond the
scope of the special issues, and that the jury was unable to
express its reasoned moral response to that evidence in determining
whether death was the appropriate punishment.” Id. at 322. The
Court explained in detail why it rejected the State’s contrary
argument that the jury was able to consider and give effect to all
of Penry’s mitigating evidence in answering the three special
issues. Id.
The first special issue, which asked whether the defendant
acted “deliberately and with the reasonable expectation that the
death of the deceased . . . would result,” impermissibly limited
74
the jury’s function because the term “deliberately” had not been
defined by the Texas Legislature, the Texas Court of Criminal
Appeals, or the trial court’s instructions. Id. at 322. Even if
the jurors “understood ‘deliberately’ to mean something more than
. . . ‘intentionally’ committing murder, those jurors may still
have been unable to give effect to Penry’s mitigating evidence in
answering the first special issue.” Id. The reason was
“deliberately” was not defined “in a way that would clearly direct
the jury to consider fully Penry’s mitigating evidence as it bears
on his personal culpability.” Id. at 323. Consequently, the Court
concluded, unless there are “jury instructions defining
‘deliberately’ in a way that would clearly direct the jury to
consider fully Penry’s mitigating evidence as it bears on his
personal culpability, we cannot be sure that the jury was able to
give effect to the mitigating evidence of Penry’s mental
retardation and history of abuse in answering the first special
issue.” Id. at 323. “Thus, we cannot be sure that the jury’s
answer to the first special issue reflected a reasoned moral
response to Penry’s mitigating evidence.” Id. (internal quotation
omitted).
The second special issue, which asked “whether there is a
probability that the defendant would commit criminal acts of
violence that would constitute a continuing threat to society,”
permitted the jury to consider and give effect to Penry’s mental
75
retardation and childhood abuse as “relevant only as an aggravating
factor[.]” Id. The second special issue was inadequate both
because it only gave effect to Penry’s evidence as an aggravating
factor, and because it did not allow the jury to give full effect
to Penry’s mitigating evidence. Id. at 323. Thus, the Court
concluded that Penry’s evidence of mental retardation and childhood
abuse was a “two-edged sword,” diminishing “his blameworthiness for
his crime even as it indicates that there is a probability that he
will be dangerous in the future.39 Id. at 324.
As a result the majority held, “in the absence of instructions
informing the jury that it could consider and give effect to the
mitigating evidence of Penry’s mental retardation and abused
background by declining to impose the death penalty, . . . the jury
was not provided with a vehicle for expressing its ‘reasoned moral
response’ to that evidence in rendering its sentence.” Id. at 328.
In Penry II the Court again confronted the constitutionality
of Penry’s death sentence, this time after re-sentencing in the
wake of Penry I. Texas attempted to correct the defects the Court
identified in Penry I with a supplemental instruction to the three
special issues. This so-called “nullification instruction” said:
39
The third special issue, which asked “whether the conduct of
the defendant in killing the deceased was unreasonable in response
to provocation, if any, by the deceased,” was not relevant there
(or here) because provocation was (and is) not in issue.
76
You are instructed that when you deliberate on the
questions posed in the special issues, you are to
consider mitigating circumstances, if any, supported by
the evidence presented in both phases of the trial,
whether presented by the state or the defendant. A
mitigating circumstance may include, but is not limited
to, any aspect of the defendant's character and record or
circumstances of the crime which you believe could make
a death sentence inappropriate in this case. If you find
that there are any mitigating circumstances in this case,
you must decide how much weight they deserve, if any, and
therefore, give effect and consideration to them in
assessing the defendant's personal culpability at the
time you answer the special issue. If you determine,
when giving effect to the mitigating evidence, if any,
that a life sentence, as reflected by a negative finding
to the issue under consideration, rather than a death
sentence, is an appropriate response to the personal
culpability of the defendant, a negative finding should
be given to one of the special issues.
Penry II, 532 U.S. at 789-790.
The Penry II Court explained that there were two
interpretations of this instruction, neither of which resolved the
concerns it identified in Penry I. First, the Court noted the
instruction may have told jurors to consider Penry’s mitigating
evidence within the special issues. But such an interpretation
left “the jury in no better position than was the jury in Penry I,”
because “none of the special issues is broad enough to provide a
vehicle for the jury to give mitigating effect to the evidence of
Penry’s mental retardation and childhood abuse.” Id. at 798.
Alternatively, the instruction may have asked the jury to answer
“no” to a special issue if it believed Penry did not deserve the
death penalty, regardless of its honest answer to the question.
77
This interpretation was also constitutionally unsound because it
would require jurors to violate their oath to render a “true
verdict” to give effect to Penry’s evidence, putting jurors in a
logical and ethical bind. Id. at 799-800. Thus, the Penry II
majority concluded, the Texas court ruling that the supplemental
instruction cured the Penry I problems was objectively
unreasonable.
B. Applicability to Robertson
From the Penry I opinion it is clear that the Court considered
Penry’s abused childhood, as well as his mental retardation, to be
independently relevant mitigating evidence that the jury should
have been instructed that it could consider and give effect to in
determining whether to impose the death penalty. In reversing
Penry’s death sentence, the Court concluded that “his mitigating
evidence of mental retardation and childhood abuse has relevance to
his moral culpability beyond the scope of the special issues, and
that the jury was unable to express its reasoned moral response to
that evidence in determining whether death was the appropriate
response.” Penry I, 492 U.S. at 322 (emphasis added); see also id.
at 312 (listing as separate evidence of Penry’s possible reduced
personal culpability “his mental retardation, arrested emotional
development, and abused background”); id. at 323 (“[B]ecause of his
history of childhood abuse, that same juror [who concluded that
78
Penry acted ‘deliberately,’] could also conclude that Penry was
less morally culpable than defendants who have no such excuse[.]”)
As Robertson has presented evidence of childhood abuse here,
Penry I, along with Penry II, should be outcome determinative.
Under Penry I, the special issues given at Robertson’s trial, which
were identical to those given in Penry’s trial, were an inadequate
vehicle for allowing a jury to consider Robertson’s child abuse
evidence in making a reasoned death penalty determination. And the
nullification instruction does not change this result.40 Penry II,
532 U.S. at 803-04.
The majority responds to this clear textual command from the
Court that the special issues are constitutionally infirm where a
defendant presents evidence of childhood abuse with two arguments.
First, it argues that “[c]hildhood abuse alone is not
systematically discussed by Penry I” because there the evidence of
child abuse “was inseparable from the Court’s greater concern with
Penry’s mental retardation and poor impulse control.” Second, the
majority contends that it is neither “logically or empirically true
that generic childhood abuse, of whatever duration, type, or
severity, bears the same characteristics as mental retardation.”
40
As Judge DEMOSS’ dissent explains the nullification
instruction here and in Penry II were similar, although not
identical. But neither the majority, nor Texas asserts that the
differences affect our analysis here.
79
As to the first argument, the Supreme Court never suggested
that either mental retardation or childhood abuse evidence by
itself could be constitutionally weighed and acted upon by a jury
within the shackles and confines of the special issues. If, as the
majority argues, the Court’s “greater concern” was with mental
retardation, it is odd the Court did not choose to list just mental
retardation or “lost impulse control” as the factor the special
issues could not accommodate. Or, if the Court wanted to impart
its belief that childhood abuse is evidence that only in
conjunction with mental retardation requires a special instruction,
it easily could have used the phrase “mental retardation with
childhood abuse” or “mental retardation caused by childhood abuse,”
rather than “mental retardation and abused childhood,” to describe
the problematic evidence. Thus, I, unlike the majority, am willing
to credit the Court with saying what it means: that the Texas
special issues are not equipped to handle child abuse evidence.
But even assuming the majority’s cramped reading of Penry I is
correct, and the Court did not explicitly hold that childhood abuse
evidence is not adequately encompassed by the Texas special issues,
the Court’s reasoning in Penry I, applied to childhood abuse,
mandates the same result. Childhood abuse evidence alone raises
the same constitutional problems as the joint mental retardation/
childhood abuse evidence in Penry I. The first issue of
“deliberateness,” not further defined, does not allow a jury to
80
reflect its conclusion that while a defendant purposely committed
a murder, his culpability for that purposeful killing was reduced
as a consequence of his abuse as a child. Penry I, 492 U.S. at
322-23. And the second special issue, future dangerousness,
raises an even more troubling scenario of a “two-edged sword,”
where child abuse serves as an aggravating, rather than mitigating,
factor. Id. at 323. As Chief Justice Rehnquist noted in a
different context in Santosky v. Kramer, 455 U.S. 745, 789 (1982)
(Rehnquist, J., dissenting), “[i]t requires no citation of
authority to assert that children who are abused in their youth
generally face extraordinary problems developing into responsible,
productive citizens.”41 Given such common knowledge of the greater
likelihood of recidivism among abused children, the Texas special
issues leaves a jury with no room to register its conclusion that
while a defendant is a future threat to society, his abuse as a
41
Or perhaps it does require a citation. The majority suggests
that childhood abuse of lesser duration or severity may not have
the same effect within the Texas special issues system as the very
serious childhood abuse Penry suffered. I take this to mean that
the majority contends that in cases of less serious childhood abuse
the evidence is not necessarily aggravating because there is a
lesser risk of recidivism than among the seriously abused because
the effects of less severe childhood abuse are treatable. Motley
v. Collins, 18 F.3d 1223, 1235 (5th Cir. 1994). As an empirical
matter this is not necessarily correct. A study done by the State
University of New York (SUNY)- Albany showed that the fact of child
maltreatment, rather than its form, was the greatest predictor (and
presumably cause) of later delinquency. Office of Juvenile Justice
and Delinquency Prevention, U.S. Dep’t of Justice, Juvenile Justice
Bulletin, In the Wake of Childhood Maltreatment (Aug. 1997).
81
child reduces his responsibility for that threat, making use of the
death penalty inappropriate.42
Thus, even assuming we are operating without a Supreme Court
decision on whether evidence of childhood abuse alone can be
considered within the Texas special issues, the presence of the
same concerns the Court found with the evidence in Penry I mandates
a finding that the special issues are constitutionally infirm here.
II.
The majority fails to reach this result today because it
relies on what I believe is an erroneous line of precedent first
established in our en banc decision in Graham v. Collins, 950 F.2d
1009, 1029 (5th Cir. 1992) (en banc). Under the Graham test
whether a defendant’s mitigating evidence is not adequately
encompassed within the Texas special issues, turns on whether that
evidence meets four stringent criteria: voluntariness, permanence,
severity, and attribution. The majority describes these
requirements for “constitutionally relevant mitigating evidence”
“readily apparent from the Court’s opinion in Penry I.” I believe,
however, that it is “readily apparent” that this test bears no
connection to the reasoning underlying the Penry I decision.
42
And under the Court’s decision in Penry II, the presence of
the nullification instruction does not change this outcome. Penry
II, 532 U.S. at 803-04.
82
The Supreme Court’s most fundamental holding regarding
mitigating evidence at the capital sentencing phase is that “a
sentencer may not be precluded from considering, and may not refuse
to consider, any relevant mitigating evidence.” Penry I, 492 U.S.
at 318. This evidence includes “any aspects of a defendant’s
character or record and any of the circumstances of the offense
that a defendant proffers as a basis for a sentence less than
death.” Id. at 317 (quoting Lockett v. Ohio, 438 U.S. 586, 604
(1978) (plurality opinion)). Where our en banc decision in Graham
and its progeny go wrong is by failing to ask the fundamental Penry
I question of how, if at all, the Texas special issues allow a jury
to give meaningful consideration to a particular piece of
mitigating evidence. For the Graham test to be correct under Penry
I, the Texas special issues must allow a jury to adequately weigh
a piece of mitigating evidence wherever that evidence does not fall
within the Graham criteria. But this is not the case. For
example, how do the special issues allow a jury to weigh evidence
of a defendant’s childhood abuse where the crime is not directly
attributable to that abuse? Under the Texas system a jury could
believe that this history of abuse made a defendant more likely to
commit future crimes, but, absent a meaningful mitigating evidence
instruction, would have no outlet to express its determination that
83
the defendant is not morally culpable enough, as a consequence of
his history of abuse, for the death penalty.43
The majority makes two responses to the argument that the
Graham line of cases misapplies Penry I. First, the majority notes
that Supreme Court decisions in Graham v. Collins, 506 U.S. 461
(1993), and Johnson v. Texas, 509 U.S. 350 (1993), established the
principle that Penry I is an exception to Jurek v. Texas, 428 U.S.
262 (1976), which found that the Texas special issues system was
not unconstitutional on its face, rather than vice versa. How this
rather unremarkable statement alters the Penry I analysis escapes
me. In both Graham and Johnson the question was whether youth as
a mitigating factor was adequately accounted for within the Texas
special issue system. Significantly, in determining whether the
special issues were sufficiently capacious to encompass evidence of
youth, the Court did not pick up the four-pronged Fifth Circuit
test the majority advocates here. Rather, it answered the question
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Of course the majority may respond that one is not less
morally culpable for a crime because of a history of child abuse
unless the crime can be proven by expert testimony to be
attributable to that abuse. While I disagree with this conclusion,
the opinion of the court on this matter is, frankly, irrelevant.
It is the province of the jury in Texas, as sentencer, to weigh
mitigating evidence and draw inferences of culpability from that
evidence. Penry I, 492 U.S. at 328 (“...the jury must be able to
consider and give effect to any mitigating evidence relevant to a
defendant’s background and character or the circumstances of the
crime.”); id. at 318 (explaining that under Lockett and Eddings the
sentencer must be allowed consider all mitigating evidence). Our
Graham test substitutes this court’s cramped judgment of what is
mitigating for that of the jury.
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Penry I mandated it answer: whether the Texas special issues
allowed a jury to express its belief that because the capital
defendant was young when he committed his crime, he is not morally
deserving of the death penalty. Graham, 506 U.S. at 475
(explaining essence of Penry I is whether relevant mitigating
evidence is placed beyond the “effective reach of the sentencer”);
Johnson, 509 U.S. at 367 (“The question presented here is whether
the Texas special issues allowed adequate consideration of
petitioner’s youth.”) And the answer there was yes, because unlike
with evidence of childhood abuse, the impact of youth at the time
of committing a crime can be reflected in a “no” to future
dangerousness, to reflect the lower risks of recidivism with age.
Graham, 506 U.S. at 475 (“[I]t is evident that Graham’s
evidence–unlike Penry’s– had mitigating relevance to the second
special issue concerning his likely future dangerousness.”)
Johnson, 509 U.S. at 368 (“We believe there is ample room in the
assessment of future dangerousness for a juror to take account of
the difficulties of youth as a mitigating force in the sentencing
determination.”)
Thus, the important principle to derive from Graham and
Johnson is that in those cases the Court reaffirmed the basic test
of Penry I for when the Texas special issues transgress the Eighth
Amendment (i.e., when they do not allow a jury to consider a
particular piece of mitigating evidence in making the death penalty
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determination). And this bears little resemblance to our en banc
Graham test.
Perhaps realizing that allusions to Graham and Johnson would
not rescue its four-headed hydra, the majority stretches even
further in its second defense of its test, ascribing significance
to the Supreme Court’s failure to grant certiorari in earlier cases
challenging it. It should not bear repeating that denial of
certiorari does not shed any light on the views of the Court on the
merits of the dispute in which the petition was denied. Holloway
v. McElroy, 632 F.2d 605, 636 n.50 (5th Cir. 1980). But more
startling is the majority’s cavalier expectation that the Supreme
Court repeatedly consider Texas death penalty cases to sort out the
applicable legal standards, rather than recognizing our
responsibility to get those cases right using previous Supreme
Court decisions. Rather than counting on the Court’s denials of
certiorari, the majority would have been well served to attempt to
apply the principles of Penry I here, lest the Court decide to
again correct an “unreasonable” application of its existing
precedent. Penry II, 532 U.S. at 803-04.
III.
Today’s decision is deeply troubling. Petitioner Robertson
introduced mitigating evidence of childhood abuse in the penalty
phase of his trial, but that evidence could not be considered by
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the jury in making its moral, reasoned death determination because
of the limited special issues inquiry. Yet rather than require
Texas to re-sentence Robertson in line with constitutional
minimums, as mandated by Penry I and Penry II, the majority applies
a test that bears little relation to Supreme Court precedent to
find Robertson’s sentence constitutionally sound. And rather than
attempt to apply the Court’s clear principles, the majority resorts
to inapposite precedent and counting cert denials to defend its
actions. Because I believe this is wrong, I cannot join the
majority.
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