Dinkins v. Cockrell ( 2002 )


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  •                  UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    _____________________
    No. 01-40500
    _____________________
    RICHARD DINKINS,
    Petitioner-Appellant,
    versus
    JANIE COCKRELL, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
    INSTITUTIONAL DIVISION,
    Respondent-Appellee.
    Appeal from the United States District Court
    for the Eastern District of Texas
    (5:98-CV-172)
    March 28, 2002
    Before JONES, BARKSDALE, and BENAVIDES, Circuit Judges.
    PER CURIAM:*
    Pursuant to a certificate of appealability (COA) granted by
    the district court, Richard Dinkins, convicted of capital murder
    and sentenced to death, contests the denial of federal habeas
    relief, contending that punishment-phase jury instructions given
    pursuant to the pre-amended TEX. CODE CRIM. PROC. art. 37.071 and
    Penry v. Lynaugh, 
    492 U.S. 302
    (1989) (Penry I), violated the
    Eighth and Fourteenth Amendments by preventing the jury from
    *
    Pursuant to 5TH CIR. R. 47.5, the court has determined that
    this opinion should not be published and is not precedent except
    under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
    adequately     considering       the     favorable     conduct   and    character
    mitigating evidence he presented.              AFFIRMED.
    I.
    On 12 September 1990, a massage therapist and client were
    found shot at the therapist’s office in Beaumont, Texas; they died
    shortly     thereafter.      At    the    scene,     police   discovered:          an
    appointment book listing an appointment with a “Ricky Dennis”
    earlier that evening; and a client application form for a “Ricky
    Dinkins”, including his place of employment and a telephone number.
    The   next   day    investigators        for   the   Beaumont    police      and
    district    attorney     questioned      Dinkins     and   arrested    him    on   an
    outstanding misdemeanor warrant. Later that day, Dinkins consented
    to a search of his automobile, from which a .357 revolver and two
    boxes of ammunition were seized.
    The following day (14 September), after obtaining Dinkins’
    consent, the investigators searched Dinkins’ home, in his presence,
    and   discovered    a     pair    of   blood-stained       trousers.         Shortly
    thereafter, Dinkins gave a statement inculpating himself in the
    murders.     Dinkins was indicted that October.             At trial in 1992, it
    was further established that:                 the blood on Dinkins’ trousers
    matched the blood type of one of the victims; the .357 revolver was
    sold to Dinkins the day before the murders; and slugs recovered
    from the crime scene were fired from that revolver.               Additionally,
    a witness testified that, on the evening of the murders, he saw
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    Dinkins enter his automobile and drive away from the crime scene.
    The jury convicted Dinkins of capital murder.
    During the punishment phase, the State presented two witnesses
    — the investigators who had handled the case.        They testified about
    the   details   of   the   murder   and   Dinkins’   demeanor   during   the
    investigation.
    Dinkins presented ten character witnesses.           They testified
    that:   he is not a violent or dangerous person; he is a “nice boy”
    and a “compassionate individual” with a “good personality”; he
    often helped care for his parents and grandparents; he “did things”
    for a woman and her husband and “would not take payment for it”; he
    had no disciplinary problems during his pre-trial incarceration and
    had reported a possible jail break; he once gave a woman a
    cigarette lighter because she had lost her husband’s; and he served
    in the Air Force for approximately four years as an Air Policeman
    and was “parachute qualified”.
    The judge instructed the jury on three special issues, in
    accordance with TEX. CODE CRIM. PROC. ANN. art. 37.071 (Vernon 1981),
    which provided, in pertinent part:
    (b) On conclusion of the presentation of
    the evidence [in a capital trial where the
    state seeks the death penalty], the court
    shall submit the following issues to the jury:
    (1) whether the conduct of the defendant
    that caused the death of the deceased was
    committed deliberately and with the reasonable
    expectation that the death of the deceased or
    another would result;
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    (2) whether there is a probability that
    the defendant would commit criminal acts of
    violence that would constitute a continuing
    threat to society [future dangerousness]; and
    (3) if raised by the evidence, whether
    the conduct of the defendant in killing the
    deceased was unreasonable in response to the
    provocation, if any, by the deceased.
    In addition to the three statutorily-mandated issues, and in
    an effort to comply with Penry I (1998), discussed infra, the
    district court provided a supplemental instruction:
    In making these decisions, you are
    instructed that you can consider any evidence
    which, in your opinion, mitigates against an
    answer of “yes” to each issue, including any
    aspects of the Defendant’s character or
    record, and any of the circumstances of the
    commission of this offense which you find to
    be mitigating.   And if such evidence causes
    you to have a reasonable doubt as to any
    issue, you are required to answer that issue
    “no”.
    Contrary to the record, and without explanation, Dinkins’ brief
    quotes an entirely different supplemental instruction. Apparently,
    this is an attempt to analogize his case to Penry v. Johnson, 
    121 S. Ct. 1910
    (2001) (Penry II).
    The   jury   answered    the   three   statutorily-mandated   special
    issues affirmatively.        (Dinkins incorrectly states that only the
    first two special issues were submitted to the jury.) Accordingly,
    Dinkins was sentenced to death.
    The Texas Court of Criminal Appeals affirmed the conviction
    and sentence, and the Supreme Court denied certiorari.        Dinkins v.
    4
    State, 
    894 S.W.2d 330
    , 361 (Tex. Crim. App.) (en banc), cert.
    denied, 
    516 U.S. 832
    (1995).
    Dinkins sought state habeas relief, presenting, inter alia,
    the issue for which the COA was later granted by the district
    court:   that the punishment-phase instructions precluded the jury
    from adequately considering mitigating evidence, in violation of
    the Eighth and Fourteenth Amendments (Penry claim).      The habeas
    court recommended denying relief, finding Dinkins had “failed ...
    to allege any facts which would bring his Claim within the scope
    of” Penry I, and that, consequently, the Penry claim was “not
    entitled to consideration because it fails to allege any facts that
    would support it”.   Ex Parte Dinkins, Writ No. 56212-A (252d D. Ct.
    23 July 1998).   The Court of Criminal Appeals adopted the findings
    and conclusions and denied relief.    Ex parte Dinkins, No. 38671-01
    (Tex. Crim. App. 4 Nov. 1998).
    Dinkins filed for federal habeas relief in November 1998.    A
    magistrate judge recommended denial.      For the Penry claim, the
    magistrate judge found that the charge afforded the jury sufficient
    latitude to consider the relevant mitigating evidence.     In March
    2001, after a de novo review and over Dinkins’ objections, the
    district court adopted the report and recommendation and granted
    the State’s motion for summary judgment.
    Penry II was rendered post-judgment.     In the light of Penry
    II, the district court granted a COA in June 2001.
    5
    II.
    “Summary judgment is appropriate if the record discloses ‘that
    there is no genuine issue as to any material fact and that the
    moving party is entitled to a judgment as a matter of law.’”
    Williams v. Scott, 
    35 F.3d 159
    , 161 (5th Cir. 1994) (quoting FED.
    R. CIV. P. 56(c)), cert. denied, 
    513 U.S. 1137
    (1995). In a federal
    habeas appeal, “[w]e review the district court’s grant of summary
    judgment de novo”.     
    Id. We do
    so “applying the same standard of
    review to the state court’s decision as the district court”.
    Thompson v. Cain, 
    161 F.3d 802
    , 805 (5th Cir. 1998).
    “[B]ecause [Dinkins] filed his federal habeas petition after
    the effective date of the Antiterrorism and Effective Death Penalty
    Act of 1996 ..., Pub. L. 104-132, 110 Stat. 1214 (1996), the
    statute applies to his case”.     Martinez v. Johnson, 
    255 F.3d 229
    ,
    237 (5th Cir. 2001), cert. denied, No. 01-7408, 
    2002 WL 257045
    (U.S. 25 Feb. 2002).    But, the point at which Dinkins first raised
    his Penry claim, and the grounds on which the state courts disposed
    of it, are not entirely clear.      Of course, whether a state court
    has “adjudicated [the claim] on the merits” affects the deference
    federal courts are to afford the state court’s decision. 28 U.S.C.
    § 2254(d).     We need not decide what deference to afford, however.
    Even affording none, Dinkins’ Penry claim fails.
    Subsequent to Penry I (1989), discussed below, Texas amended
    art. 37.071.    The jury is now instructed, inter alia, to determine
    6
    “[w]hether, taking into consideration all of the evidence, ...
    there is a sufficient mitigating circumstance or circumstances to
    warrant that a sentence of life imprisonment rather than a death
    sentence be imposed”.         TEX. CODE CRIM. PROC. ANN. art. 37.071(e)(1)
    (Vernon Supp. 2002).          The amendments, however, apply only for
    capital offenses subsequent to 31 August 1991. 
    Id. art. 37.071(i).
    Dinkins committed the murders prior to that date.
    A.
    Penry     I   involved    an   as-applied,         Eighth   and     Fourteenth
    Amendment challenge to the special issues in the pre-amended art.
    37.071.   During the punishment phase, Penry offered mitigating
    evidence of mental retardation and childhood abuse.                 The jury was
    instructed in accordance with pre-amended art. 37.071. But despite
    a request by Penry, it “was never instructed that it could consider
    the evidence [he] offered ... as mitigating evidence and that it
    could   give    mitigating     effect       to   that    evidence      in   imposing
    sentence”.     Penry 
    I, 492 U.S. at 320
    .
    The Court reiterated its holding from Lockett v. Ohio, 
    438 U.S. 586
    (1978), and Eddings v. Oklahoma, 
    455 U.S. 104
    (1982):                  the
    Eighth and Fourteenth Amendments require a State to permit a jury
    to “consider[] and giv[e] 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”.                    Penry
    
    I, 492 U.S. at 318
    .       The Court then analyzed each of the three
    7
    special issues and held:        the mitigating evidence presented by
    Penry, particularly that of his retardation, had relevance beyond
    the special issues; and the jury, in the absence of further
    instruction, “was not provided with a vehicle for expressing its
    ‘reasoned   moral   response’   to   that   evidence   in   rendering   its
    sentencing decision”. 
    Id. at 328
    (quoting California v. Brown, 
    479 U.S. 538
    , 545 (1987) (O’Connor, J., concurring)).
    Our court has read Penry I as follows:
    According to the [Penry I] Court, in the
    absence of an instruction defining the term
    “deliberately” in the first special issue, the
    jury may have been precluded from giving
    effect to their possible opinion that Penry’s
    mental retardation and history of childhood
    abuse made him “less able than a normal adult
    to control his impulses or to evaluate the
    consequences of his conduct” and thus less
    personally culpable.     With respect to the
    second issue [future dangerousness], the Court
    found that the mitigating evidence was a
    double-edged   sword:      it  mitigated   his
    culpability and at the same time it indicated
    that he would be dangerous in the future.
    Finally, the evidence was not relevant to the
    third issue [response to provocation by
    deceased]. The Court concluded that the state
    court erred by not instructing the jury that
    it could consider and give effect to the
    mitigating   evidence    of   Penry’s   mental
    retardation and childhood abuse by declining
    to impose the death sentence.
    Lackey v. Scott, 
    28 F.3d 486
    , 488 (5th Cir. 1994) (quoting Penry 
    I, 492 U.S. at 323
    ; internal citations omitted), cert. denied, 
    513 U.S. 1086
    (1995).
    8
    Texas retried Penry in 1990; he was again convicted of capital
    murder.    During the punishment phase of that second trial, Penry
    again proffered evidence of his mental retardation and childhood
    abuse.    See Penry 
    II, 121 S. Ct. at 1916
    .    In an effort to comply
    with Penry I, and in addition to the three statutorily-mandated
    special issues, the trial court gave a supplemental instruction,
    directing the jury, in answering the special issues, to give effect
    to any mitigating circumstances.       See 
    id. at 1917.
      (Likewise, as
    noted, at Dinkins’ trial, and in the light of Penry I, a mitigating
    evidence supplemental instruction was given.)
    Penry II held, however, that the supplemental instruction
    failed to satisfy Penry I:   “that the jury be able to ‘consider and
    give effect to [a defendant’s mitigating] evidence in imposing
    sentence’”.    
    Id. at 1920
    (emphasis and alteration in original;
    quoting Penry 
    I, 492 U.S. at 319
    ).        The Court found useless any
    attempt by the supplemental instruction to prompt the jurors “to
    take Penry’s mitigating evidence into account in determining their
    truthful answers to each special issue”, because, as Penry I had
    held, “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”.      Penry II, 121 S.
    Ct. at 1921.     And, to the extent the instruction attempted to
    inform the jury “it could simply answer one of the special issues
    ‘no’ if it believed that mitigating         circumstances made a life
    9
    sentence ... appropriate ... regardless of its initial answers to
    the questions”, 
    id., the Court
    concluded the instruction, in
    conjunction with the special issues, rendered the overall jury
    charge internally contradictory, making it “logically and ethically
    impossible for a juror to follow both sets of instructions”, 
    id. at 1922.
    As noted, Penry II was rendered after the district court
    denied habeas relief in the case at hand.          Accordingly, it granted
    the COA concerning the mitigating evidence Dinkins had presented.
    B.
    Dinkins   claims   that   his        jury   received   a   supplemental
    instruction “virtually identical” to that in Penry II; and that,
    evaluated contextually, it failed to allow the jury to consider and
    give effect to mitigating evidence of “his heroic and honorable
    service in his country’s armed forces, numerous good deeds in his
    community, and testimony concerning his good character”.             (Again,
    Dinkins’ supplemental instruction was not “virtually identical” to
    that in Penry II.)
    1.
    Dinkins does not address whether, for purposes of his Penry
    claim, the cited mitigating evidence is “constitutionally relevant
    mitigating evidence”.   As explained in Madden v. Collins, 
    18 F.3d 304
    (5th Cir. 1994), cert. denied, 
    513 U.S. 1156
    (1995):
    10
    To grant relief on a Penry claim, we must
    determine (1) that the proffered evidence was
    constitutionally relevant mitigating evidence,
    and, if so, (2) that the proffered evidence
    was beyond the “effective reach” of the
    jurors. Thus rejection of a Penry claim does
    not necessarily mean in every case that the
    jury was able to evaluate the proffered
    evidence fully and fairly.      A Penry claim
    rejection may also be based on the failure of
    the evidence relied upon by the petitioner to
    be   constitutionally   relevant    mitigating
    evidence.
    
    Id. at 308
    (citing Johnson v. Texas, 
    509 U.S. 350
    (1993); footnote
    omitted; second emphasis added).
    The necessity and logic of our court’s Penry I jurisprudence
    — and specifically the two-step inquiry described in Madden — was
    not altered by Penry II.   It simply held that the supplemental jury
    instruction given in that case was not sufficient to correct the
    specific deficiency recognized in Penry I.     See Penry II, 121 S.
    Ct. at 1921-22.
    In order to determine whether the mitigating evidence is
    “constitutionally relevant”, we must ask whether “the evidence
    implicate[s] the basic concern of Penry ‘that defendants who commit
    criminal acts that are attributable to a disadvantaged background,
    or to emotional and mental problems, may be less culpable than
    defendants who have no such excuse’”.      
    Madden, 18 F.3d at 307
    (quoting Penry 
    I, 492 U.S. at 319
    ; emphasis added).    “In order to
    present relevant evidence that one is less culpable for his crime,
    11
    the evidence must show (1) a ‘uniquely severe permanent handicap[]
    with which the defendant was burdened through no fault of his own’,
    and (2) that the criminal act was attributable to this severe
    permanent condition.”      Davis v. Scott, 
    51 F.3d 457
    , 460-61 (5th
    Cir.) (alteration in original; internal citations omitted; quoting
    Graham v. Collins, 
    950 F.2d 1009
    , 1029 (5th Cir. 1992) (en banc),
    aff’d on other grounds, 
    506 U.S. 461
    (1993)), cert. denied, 
    516 U.S. 992
    (1995); see also Turner v. Johnson, 
    106 F.3d 1178
    , 1189
    (5th Cir. 1997) (“To qualify for the special exception to the scope
    of the special issues carved out by Penry [I], proffered evidence
    must demonstrate a ‘uniquely severe permanent handicap ... with
    which the defendant was burdened through no fault of his own.’”
    (quoting 
    Graham, 950 F.2d at 1029
    )).
    Obviously, in this light, the cited mitigating evidence of
    Dinkins’ military service, good deeds, and good character is not
    Penry evidence.    Accordingly, his Penry claim ends there.           (Along
    this line, Dinkins’ “claim fails for lack of nexus between the
    mitigating evidence and the criminal act”.         Harris v. Johnson, 
    81 F.3d 535
    , 539 (5th Cir.), cert. denied, 
    517 U.S. 1227
    (1996).)
    2.
    Even assuming, arguendo, Dinkins’ evidence is such evidence,
    it was not placed beyond the effective reach of the jurors.               It
    “could be considered by the jury to some extent under one of the
    special   issues   —   particularly    the   [second]   issue   of   ‘future
    12
    dangerousness’”.    
    Madden, 18 F.3d at 308
    n.15.         Indeed, in Graham
    v. Collins, 
    506 U.S. 461
    , 476 (1993), the Court stated it was “not
    convinced that Penry [I] could be extended to cover” mitigating
    evidence of “positive character traits” because such evidence is
    already given adequate consideration in the special issues:
    Jurek is reasonably read as holding that the
    circumstance      of    youth     is     given
    constitutionally adequate consideration in
    deciding the special issues. We see no reason
    to regard the circumstances of Graham’s family
    background and positive character traits in a
    different light.
    
    Id. at 476
    (emphasis added).
    The Supreme Court has similarly held that other types of
    mitigating evidence are given sufficient consideration by the
    special issues:
    The evidence of petitioner’s youth ... falls
    outside Penry [I’s] ambit.     Unlike Penry’s
    mental retardation, which rendered him unable
    to learn from his mistakes, the ill effects of
    youth that a defendant may experience are
    subject to change and, as a result, are
    readily comprehended as a mitigating factor in
    consideration of the second special issue
    [future dangerousness].
    Johnson v. Texas, 
    509 U.S. 350
    , 369 (1993).              See also Boyd v.
    Johnson, 
    167 F.3d 907
    , 912 (5th Cir.) (“Evidence of good character
    tends to show that the crime was an aberration, which may support
    a   negative   answer   to   the   special   issue   regarding   the   future
    dangerousness of the defendant.”), cert. denied, 
    527 U.S. 1055
    (1999); Barnard v. Collins, 
    958 F.2d 634
    , 640 (1992) (“[E]vidence
    13
    of ... good character, including evidence of ... carpentry skills,
    work history, and familial responsibility and support[,] ... does
    not require a special instruction under Penry [I]”.), cert. denied,
    
    506 U.S. 1057
    (1993). (Nor does such evidence present the “double-
    edged” potential of concern in Penry I and II.)
    3.
    Dinkins’ claim fails for a third reason: it is Teague-barred.
    See Teague v. Lane, 
    489 U.S. 288
    (1989).    “As none of [Dinkins’]
    mitigating evidence was truly doubled-edged in a way that Penry’s
    evidence was, and as [Dinkins’] evidence could be considered by the
    jury under the ... second special issue, the relief [Dinkins] seeks
    was not ‘dictated’ by precedent and thus constitutes a ‘new rule’
    under Teague.”   
    Madden, 18 F.3d at 308
    n.15.
    III.
    For the foregoing reasons, the denial of habeas relief is
    AFFIRMED.   Dinkins’ counsel is cautioned that repetition of the
    type of factual misstatements noted in this opinion may result in
    the imposition of sanctions.
    AFFIRMED
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