Nelson v. Dretke , 442 F.3d 282 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
REVISED MARCH 29, 2006
March 17, 2006
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 01-10646
TED CALVIN COLE,
now known as Jalil Abdul-Kabir,
Petitioner-Appellant,
versus
DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION,
Respondent-Appellee.
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Appeal from the United States District Court
for the Northern District of Texas
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ON PETITION FOR REHEARING EN BANC
(Opinion 5/19/04, 5th Cir., 99 Fed. Appx. 523)
(Opinion on Remand from U.S. Supreme Court 7/22/05, 418 F.3d 494)
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:
Treating the Petition for Rehearing En Banc as a Petition for
Panel Rehearing, the Petition for Panel Rehearing is DENIED. The
court having been polled at the request of one of the members of
the court and a majority of the judges who are in regular active
service and who are not disqualified not having voted in favor
(FED. R. APP. P. and 5TH CIR. R. 35), the Petition for Rehearing En
Banc is DENIED.
2
DENNIS, Circuit Judge, dissenting from denial of the motion for
rehearing en banc.
I respectfully dissent from the majority’s refusal to grant
rehearing en banc. The Supreme Court remanded this case to the
panel for reconsideration in the light of Tennard v. Dretke, 542
U.S. 274 (2004), which determined that the Fifth Circuit’s
“constitutional relevance rule,” which included the “nexus” and
“uniquely severe” tests, had no basis in the Supreme Court’s
decisions and suggested that those rules were, in fact, in conflict
with federal law clearly established by the Supreme Court’s
decisions in Penry v. Lynaugh, 492 U.S. 302 (1989)(Penry I), Boyde
v. California, 494 U.S. 370 (1990), and McKoy v. North Carolina,
494 U.S. 433 (1990).
The panel, after reconsidering this case in light of Tennard
and Smith v. Texas,1 543 U.S. 37 (2004), applied the clearly
established federal relevance standard recognized in McKoy to
determine that Cole’s organic neurological defect, lack of impulse
control and destructive family background were relevant mitigating
evidence, but incorrectly interpreted and applied the Supreme
Court’s decisions in Johnson v. Texas, 509 U.S. 350 (1993) and
Graham v. Collins, 506 U.S. 461 (1993) as holding that the clearly
established federal capital sentencing principles (requiring a
1
Decided by the Supreme Court subsequent to its remand of
Cole.
3
State to empower and allow its capital sentencer to fully consider
a defendant’s relevant mitigating evidence in individualized
assessment of his culpability and to give that evidence full effect
in selecting his sentence) articulated in Penry I apply only to
mitigation evidence, such as mental retardation, that has, for the
defendant’s case, a “double-edged” harmful (i.e., only an
aggravating, and no mitigating) effect upon the jury’s answer to
whether the defendant will be a danger to society in the future.
Then, without bothering to determine whether the pertinent state
court’s decision was contrary to or an unreasonable application of
clearly established federal law under AEDPA, the panel examined
Cole’s mitigation evidence in detail, determined that none of it
had a double-edged effect, and thus concluded that there had been
no constitutional violation under Penry I.
In doing so, I believe that the panel used another Fifth
Circuit gloss upon a Supreme Court decision, i.e., the double edged
evidence limitation of Penry I, that has no basis in the Supreme
Court decisions, to avoid confronting the real issue, viz., whether
the Texas special issue instruction prevented the sentencing jury
from being able to fully consider and give full effect to Cole’s
relevant mitigating evidence. When that issue is addressed by
applying the federal law clearly established by the Supreme Court’s
decisions, shorn of unauthorized Fifth Circuit gloss, as required
by AEDPA, I believe that we will be forced to conclude that the
4
decision by the state court on November 24, 1999 to deny Cole
habeas relief was either contrary to or an unreasonable application
of clearly established federal law as determined by the Supreme
Court’s decisions. I cannot be absolutely certain of this result,
because neither the panel nor I have yet examined that state court
decision and its underpinnings. On its face, however, the panel
decision appears to be incorrect and the situation we are in
clearly calls for an en banc reconsideration of this case.
The majority’s decision to deny en banc reconsideration of the
panel decision is extremely unfortunate. The panel’s decision
erroneously denigrates the pertinent clearly established Supreme
Court jurisprudence of Penry I, McKoy and Boyde specifically
highlighted in Tennard and Smith and perpetuates the
misinterpretation of Johnson v. Texas and Graham v. Collins as our
circuit precedent. Our other panels, as well as the federal
district and state courts, are certain to follow the Cole panel
once more into a breach that leads to almost certain Supreme Court
reversals and remands. The resulting waste of judicial resources
will be exacerbated this time, however, by our indifference in
allowing the Cole panel’s false signals to misdirect the
adjudication and review of many other state and federal Texas death
penalty cases. The responsible, efficient and just course in the
present circumstances would have been, instead, for us to resolve
promptly en banc the important issues raised by the Cole panel
5
decision and allow time for possible correction by the Supreme
Court before permitting our numerous other death penalty panels to
generate more decisions without either en banc or renewed Supreme
Court guidance.
The reasons that an en banc rehearing is urgently needed in
this case are substantially similar to the reasons I assigned in
concurring in the judgment only in Nelson v. Dretke – F.3d —, No.
02-11096, 2006 WL 477143 at *5 (5th Cir. 2006). In that opinion,
I concluded that the clearly established federal law under AEDPA on
October 10, 2001, the date of the Texas Court of Criminal Appeals’
denial of state habeas relief to Nelson on the merits, essentially
required a state to (1) empower its capital sentencer to (a) give
full consideration and effect to all of the defendant’s relevant
mitigating evidence; (b) make an individualized assessment of the
level, degree, magnitude, and nature of the defendant’s moral
culpability and deathworthiness; and (c) select the appropriate
sentence of either life imprisonment or death for each convicted
defendant based on that assessment in light of all of the relevant
evidence in the case; and (2) refrain from interfering with the
capital sentencer’s performance of this constitutionally protected
function. In essence, I believe that these federal constitutional
requirements imposed on a State by the Eighth and Fourteenth
Amendments were clearly established by the Supreme Court’s
decisions prior to Penry I; that any doubt as to these requirements
6
was removed by the Court’s clear reaffirmation and reestablishment
of them in Penry I itself; that any new doubt or question as to
these requirements raised by any of the Court’s decisions after
Penry I, such as Johnson and Graham, were dispelled by the Court’s
decisions in McKoy, McCleskey v. Kemp, 481 U.S. 279 (1987), Boyde,
Buchanan v. Angelone, 522 U.S. 269 (1998), and Payne v. Tennessee,
501 U.S. 808 (1991), prior to the Texas Court of Criminal Appeals’
denial of state habeas relief on the merits to Cole on November 24,
1999.
In Furman v. Georgia, 408 U.S. 238 (1972), Justice Stewart
expressed what has come to be the longstanding view of the Supreme
Court that:
The penalty of death differs from all other forms of
criminal punishment, not in degree but in kind. It is
unique in its total irrevocability. It is unique in its
rejection of rehabilitation of the convict as a basic
purpose of criminal justice. And it is unique, finally,
in its absolute renunciation of all that is embodied in
our concept of humanity.
Id. at 305 (Stewart, J. concurring). Thus, he concluded, “that the
Eighth and Fourteenth Amendments cannot tolerate the infliction of
a sentence of death under legal systems that permit this unique
penalty to be so wantonly and so freakishly imposed.” Id.The natural outgrowth of that view led to the Court’s cases
condemning mandatory imposition of the death penalty, Roberts v.
Louisiana, 431 U.S. 633 (1977) (per curiam); Woodson v. North
Carolina, 428 U.S. 280 (1976) (plurality opinion); recognizing that
7
arbitrary imposition of that penalty violates the Eighth Amendment,
e.g., Zant v. Stephens, 462 U.S. 862, 874 (1983); Gregg v. Georgia,
428 U.S. 153, 189 (1976); Furman, supra; mandating procedures that
guarantee full consideration of mitigating evidence, e.g., Eddings
v. Oklahoma, 455 U.S. 104 (1982); Lockett v. Ohio, 438 U.S. 586(1978) (plurality opinion); and requiring that capital sentencers
be empowered and allowed to select for the death penalty only the
most blameworthy or deserving of offenders for that punishment
through individualized culpability assessments and sentence
selections based on the sentencer’s giving full consideration and
full effect to all of the defendant’s relevant mitigating evidence.
See California v. Brown, 479 U.S. 538, 545-546 (1987)(O’Connor, J.,
concurring)(“Lockett and Eddings reflect the belief that punishment
should be directly related to the personal culpability of the
criminal defendant. Thus, the sentence imposed at the penalty stage
should reflect a reasoned moral response to the defendant's
background, character, and crime rather than mere sympathy or
emotion....[T]he individualized assessment of the appropriateness
of the death penalty is a moral inquiry into the culpability of the
defendant[.]”) See also Hitchcock v. Dugger, 481 U.S. 393 (1987);
Sumner v. Shuman, 483 U.S. 66 (1987); Franklin v. Lynaugh, 487 U.S.
164, 184 (1988)(O’Connor, J., with Blackmun, J.,
concurring)(stating that the “principle underlying Lockett,
Eddings, and Hitchcock, is that punishment should be directly
8
related to the personal culpability of the criminal defendant.”);
Id. at 191-192 (Stevens, J., with two other Justices,
dissenting)(agreeing with O’Connor that “the jury must “not
merely...be allowed to hear any such [mitigating] evidence the
defendant desires to introduce...[but also] allowed to give
‘independent mitigating weight’ to the evidence.”).
In the parallel, sometimes overlapping, development of
exemptions from eligibility for the death penalty, the Supreme
Court has held that the principles underlying capital punishment
sentencing require that whole categories of crimes and offenders be
removed from exposure to the death penalty because they presented
an insufficient level of moral culpability to warrant the most
extreme form of punishment. Prior to Penry I, the Court thus
exempted murderers whose crimes reflect only minimal or ordinary
moral depravity, Godfrey v. Georgia, 446 U.S. 420, 433,
(1980)(plurality opinion); rapists of adult women, Coker v.
Georgia, 433 U.S. 584 (1977); murderer-accomplices who lack a
sufficiently culpable state of mind, Enmund v. Florida, 458 U.S.
782 (1982); and murderers who were under the age of 16 at the time
of the crime, Thompson v. Oklahoma, 487 U.S. 815, 838 (1988)
(plurality opinion). Subsequent to Penry I & II, the court applied
the same principles to exempt mentally retarded persons and
offenders who were under the age of 18 at the time of the crime.
Atkins v. Virginia, 536 U.S. 304 (2002); Roper v. Simmons, 543 U.S.
9551 (2005). Even dissenters who disagreed with categorical
exemptions often expressed support for the constitutional
requirement that the capital sentencer be empowered and allowed to
make particularized selection of only those for the death penalty
who were sufficiently culpable based on an individualized
assessment of the mitigating evidence and the circumstances of each
case.2 This signifies a deep and abiding establishment of the
principle of individualized capital sentencing on the basis of each
offender's degree of culpability and full consideration of
mitigation evidence.
The Supreme Court in Penry I in 1989 reaffirmed the foregoing
clearly established principles that a capital sentencer must be
empowered to individually assess the culpability and just desert of
each defendant and individually determine the appropriate sentence
2
See Atkins, 536 U.S. at 318, 122 S.Ct. 2242; see also id. at
349-351, 122 S.Ct. 2242 (stating that "only the sentencer can
assess whether his retardation reduces his culpability enough to
exempt him from the death penalty")(Scalia, J., Rehnquist, J., and
Thomas, J., dissenting); Roper, 125 S.Ct. at 1224 (stating that
"[i]n capital cases, this Court requires the sentencer to make an
individualized determination, which includes weighing aggravating
factors and mitigating factors") (Scalia, J., dissenting);
Thompson, 487 U.S. at 870, 108 S.Ct. 2687 (recognizing a
constitutional trend towards "individualized sentencing
determinations rather than automatic death sentences for certain
crimes") (Scalia, J., Rehnquist, J., and White, J., dissenting);
and Eddings v. Oklahoma, 455 U.S. 104, 121 (1982) (interpreting
Lockett as requiring an individualized consideration of mitigating
circumstances) (Burger, J., White, J., Blackmun, J., and Rehnquist,
J., dissenting).
10
for him based on all the relevant mitigating evidence. The Penry I
Court held that:
(1) at the time Penry's conviction became final, it was clear
from Lockett and Eddings 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. Penry I, 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;
11
(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) "In order to ensure reliability in the determination that
death is the 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).
Between the time of the Penry I decision in 1989 and the
pertinent state court habeas denial of habeas relief to Cole on
November 24, 1999, the Supreme Court reaffirmed or clearly
established the meaning of relevant mitigating evidence in capital
12
punishment sentencing proceedings, the requirement that the capital
sentencer be empowered and allowed to make individualized
culpability assessments and selections of sentences without
interference, the requirement that there be no limitation on the
sentencer’s consideration of any relevant mitigating circumstance,
the requirement that the sentencer not be constrained in the manner
in which it gives effect to relevant mitigating evidence, and
adopted and applied the Boyde reasonable likelihood rule for
determining when limitation on the sentencer’s ability and freedom
to fully consider and fully give effect to relevant mitigating
evidence violated the Eighth Amendment.
In McKoy v. North Carolina, 494 U.S. 433 (1990) the Court
reaffirmed or clearly established that the principle of relevance
under Federal Rule of Evidence 401 applies in capital cases and
cannot be distorted by the state so as to interfere with the
sentencer's full consideration and use of relevant evidence in
culpability assessment and sentence selection. "It is universally
recognized that evidence, to be relevant to an inquiry, need not
conclusively prove the ultimate fact in issue, but only have 'any
tendency to make the existence of any fact that is of consequence
to the determination of the action more probable or less probable
than it would be without the evidence.' FED. R. EV. 401." McKoy,
494 U.S. at 440 (quoting T.L.O., 469 U.S. at 345 (1985)).
13
In Payne v. Tennessee, 501 U.S. 808 (1991), Chief Justice
Rehnquist, writing for a six-Justice majority, reaffirmed that
"States cannot limit the sentencer's consideration of any relevant
circumstance that could cause it to decline to impose the penalty.
In this respect, the State cannot challenge the sentencer's
discretion, but must allow it to consider any relevant information
offered by the defendant." (quoting McCleskey v. Kemp, 481 U.S. 279(1987).
The Court in Buchanan v. Angelone, 522 U.S. 269, 276-77
(1998), reaffirmed that a state must empower and allow its capital
sentencer to select either the death penalty or life imprisonment
according to an individualized assessment of culpability level
based on all of the defendant's relevant mitigating evidence.
Buchanan declared that "[i]n the selection phase, [Supreme Court]
cases have established that the sentencer may not be precluded from
considering, and may not refuse to consider, any constitutionally
relevant mitigating evidence." Id. at 276. It also reaffirmed that
states do not have an unhindered ability to create sentencing
schemes as they see fit, and that to be constitutional they must
not "preclude the jury from giving effect to any relevant
mitigating evidence." Id. Finally, the Court distinguished Penry
I from the facts of Buchanan, making clear that Penry I involved a
Texas special issues scheme where the instructions "constrain[ed]
14
the manner in which the jury was able to give effect to
mitigation." 522 U.S. at 277.
In Boyde v. California, 494 U.S. 370 (1990) the Court held
that (1) the Eighth Amendment requires that the jury be able to
consider and give effect to all relevant mitigating evidence
offered by petitioner (citing Lockett v. Ohio, 438 U.S. 586 (1978);
Eddings v. Oklahoma, 455 U.S. 104 (1982); and Penry, supra) and (2)
where the claim is that a challenged capital sentencing jury
instruction is ambiguous and therefore subject to erroneous
interpretation, the proper inquiry is whether there is a reasonable
likelihood that the jury has applied the instruction in a way that
prevents the consideration of relevant mitigating evidence.
Although a defendant need not establish that the jury was more
likely than not to have been impermissibly inhibited by the
instruction, a capital sentencing proceeding does not violate the
Eighth Amendment if there is only a possibility of such an
inhibition. Id.A few years later, the Court in Johnson v. Texas, 509 U.S. 350(1993), held that where the question is raised whether the Texas
special issues instruction allowed adequate consideration of the
mitigating evidence of petitioner's youth, "the standard against
which we assess whether jury instructions satisfy the rule of
Lockett and Eddings was set forth in Boyde v. California, 494 U.S.
370 (1990). The Court there held that a reviewing court must
15
determine “whether there is a reasonable likelihood that the jury
has applied the challenged instruction in a way that prevents the
consideration of constitutionally relevant evidence.” Id. at 380.
Although the reasonable likelihood standard does not require that
the defendant prove that it was more likely than not that the jury
was prevented from giving effect to the evidence, the standard
requires more than a mere possibility of such a bar.
Thus, the Court in Johnson acknowledged that the special
issues instruction had caused a possible constitutional violation
and adopted the Boyde reasonable likelihood test for the purpose of
determining whether a violation had indeed occurred. Further, the
Court in Johnson applied the Boyde test and concluded that there
was not a reasonable likelihood that the instruction had prevented
a full consideration of the relevant mitigating evidence of
Johnson's youth for the purpose of assessing his culpability. To
support its conclusion the Court's majority opinion undertook an
extensive analysis of the evidence in that particular case and
demonstrated to its own satisfaction that the jury's mental process
in considering the evidence for the purpose of answering the future
dangerousness special issue was substantially the same as that of
a jury which had considered the evidence for the purpose of
16
assessing the defendant's culpability and selecting the appropriate
sentence.3
In essence, the Court's majority indicated that the jury's
consideration of the mitigating evidence in answering the special
issue mimicked or served as a proxy for a consideration of the
evidence for the purposes of assessing the defendant's culpability
and selection of the appropriate sentence for him and his crime.
For some jurists, this is a troublesome analysis or rationale, as
3
Thus, the Court stated that answering the future
dangerousness special issue "is not independent of an assessment of
personal culpability", involving "the extent to which youth
influenced the defendant's conduct." Johnson, 509 U.S. at 369. "If
any jurors believed that the transient qualities of petitioner's
youth made him less culpable for the murder, there is no reasonable
likelihood that those jurors would have deemed themselves
foreclosed from considering that in evaluating petitioner's future
dangerousness." Id. at 370. Consideration of the relevant qualities
of petitioner's youth still "allow[s] the jury to give effect to
[this] mitigating evidence in making the sentencing decision." Id.(internal citations omitted).
The jurors were required to "exercise a range of judgment and
discretion." Id.(citing Adams v. Texas, 448 U.S. 38, 46 (1980)).
"[A] Texas capital jury deliberating over the Special Issues is
aware of the consequences of its answers, and is likely to weigh
mitigating evidence as it formulates these answers in a manner
similar to that employed by capital juries in 'pure balancing'
States." Id. at 370- 71 (citing, Franklin v. Lynaugh, 487 U.S. 164,
182 n.12 (1988) (plurality opinion)). "[T]he questions compel the
jury to make a moral judgment about the severity of the crime and
the defendant's culpability. The Texas statute directs the
imposition of the death penalty only after the jury has decided
that the defendant's actions were sufficiently egregious to warrant
death." Id. at 371 (internal citations omitted). "[C]onsideration
of the second special issue is a comprehensive inquiry that is more
than a question of historical fact." Id.
17
evidenced by the strong dissent by four of the Justices.4
Therefore, it is important to note that whether the special issue
adequately mimicked a comparative culpability analysis in Johnson
is largely a factual inquiry based on the character and
propensities of the defendant and the circumstances of the crime in
that particular case. The holding or legal rule of decision in
Johnson, which is controlling and applicable to the present case
for purposes of AEDPA, was simply that when the special issues
instruction raises the question of whether the jury was precluded
from fully considering and giving effect to the defendant's
relevant mitigating evidence, the issue must be determined by
applying the Boyde reasonable likelihood test. The Court's
subsequent straightforward application of the Boyde test in Penry
v. Johnson, 532 U.S.782 (2001) (Penry II), without reference to
Johnson or its extensive analysis of its facts corroborates this
conclusion.
Under AEDPA, the Cole panel was required to determine whether
the state court’s denial of state habeas relief to Cole on the
merits on November 24, 1999 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. In sum, the Supreme Court has said that § 2254(d)(1)
4
See Johnson v. Texas, 509 U.S. 350, 375 (1993) (O'Connor, J.,
Blackmun, J., Stevens, J., and Souter, J., dissenting).
18
places a new constraint on the power of a federal habeas court to
grant a state prisoner's application for a writ of habeas corpus
with respect to claims adjudicated on the merits in state court.
Under § 2254(d)(1), the writ may issue only if one of the following
two conditions is satisfied--the state-court adjudication resulted
in a decision that (1) "was contrary to ... clearly established
Federal law, as determined by the Supreme Court of the United
States," or (2) "involved an unreasonable application of ...
clearly established Federal law, as determined by the Supreme Court
of the United States." Under the "contrary to" clause, a federal
habeas court may grant the writ if the state court arrives at a
conclusion opposite to that reached by this Court on a question of
law or if the state court decides a case differently than this
Court has on a set of materially indistinguishable facts. Under
the "unreasonable application" clause, a federal habeas court may
grant the writ if the state court identifies the correct governing
legal principle from this Court's decisions but unreasonably
applies that principle to the facts of the prisoner's case.
The panel opinion, however, does not describe, analyze or
review the pertinent state court’s opinion or reasons for its
decision in this case. Consequently, it is difficult to see how
the panel was able to determine with any confidence that the
pertinent state court decision was or was not contrary to or an
unreasonable application of clearly established federal law as
19
determined by the Supreme Court’s decisions. This in itself is
reason enough for an en banc reconsideration of the panel’s
decision.
The more important reason that en banc reconsideration is
needed, however, is that the Cole panel opinion on its face appears
to result in a decision that is contrary to clearly established
federal law as determined by the Supreme Court’s decisions. For the
reasons explained above and in my separate opinion in Nelson v.
Dretke, the Supreme Court decisions dating from Penry I to the
present time reaffirm and clearly establish the generally
applicable Eighth and Fourteenth Amendment requirements that a
State must empower and allow its capital sentencer to fully
consider and fully give effect to a defendant’s relevant mitigating
evidence. Cole’s moral culpability was a factor of consequence to
the outcome of the sentencing proceeding. Cole’s evidence of his
organic neurological defect, lack of impulse control, and
destructive family background was relevant mitigating evidence, as
the Cole panel concedes, because it made it more likely that the
jury would assess Cole with a lower level of culpability than it
would have without that evidence. The panel does not dispute, but
tacitly admits, that the State failed to comply with its duty and
responsibility to empower and allow the sentencing jury to fully
consider and fully give effect to Cole’s relevant mitigating
evidence by assessing his culpability and selecting his sentence on
20
the basis of that evidence and assessment. Consequently, it is
plain that there is a significant possibility that the State
violated Cole’s Eighth Amendment rights by lack of compliance with
the capital sentencing requirements. Accordingly, either the panel
or this en banc court is required to apply the Boyde test to
determine whether a violation indeed exists, and, if so, apply the
Brecht harmless error test before granting habeas relief.
The panel opinion erroneously concludes that Penry I and Penry
II have no application here because the Supreme Court limited the
scope of those decisions in Johnson, when it observed that there
was expert medial testimony that the defendant was mentally
retarded and that his condition prevented him from learning from
his mistakes, so that the only logical manner in which Penry’s jury
could have considered the evidence of his mental retardation the
future dangerousness special issue was as an aggravating factor.
Further, the panel took the position that the Supreme Court also
limited Penry I when it indicated in Graham v. Collins, 506 U.S.
461 (1993) that “family background” evidence falls within the broad
scope of Texas’s special issues.
Graham does not establish any precedent or holding that adds
to or detracts from the federal law clearly established by the
Supreme Court’s cases for purposes of AEDPA. Graham presented a
collateral attack on a death sentence by a petitioner whose
conviction became final before Penry I was decided, and thus the
21
threshold issue, the only one decided, was whether under Teague v.
Lane, 489 U.S. 288 (1989), granting Graham the relief he sought
would create a new rule of constitutional law. Because the answer
was “yes,” instead of reaching the merits of Graham’s claims, the
Court considered only the preliminary question of whether
reasonable jurists would have felt compelled by existing precedent
to rule in his favor.
The panel also misinterprets Johnson v. Texas. As I explained
earlier, the holdings in Johnson were simply that (1) when a
defendant’s challenge to a Texas special issues instruction raises
the question of whether there was an Eighth Amendment violation
because the capital sentencer was precluded from fully considering
and giving full effect to the defendant’s relevant mitigating
evidence, the reviewing court must apply the Boyde reasonable
likelihood test to determine whether such a violation occurred; and
(2) under the particular evidence and circumstances in Johnson,
according to the extensive factual analysis by the majority, there
was no reasonable likelihood that the special issues instruction
precluded the capital sentencer from fully considering and fully
giving effect to the mitigation evidence, because in that
particular case the mental and analytical processes of the capital
sentencer in answering the special issue of future dangerous
question were substantially similar to that of a reasonable capital
sentencer using the evidence for purposes of assessing the
22
defendant’s culpability and selecting the appropriate sentence on
the basis of that assessment. Johnson’s passages distinguishing
Penry’s mental retardation evidence from Johnson’s evidence of his
youth, and contrasting how they would affect the jurors’ answer to
the dangerousness special issue did not constitute a holding that
in any way limited the requirement that the capital sentencer be
enabled and allowed to give full consideration and full effect to
all of a defendant’s relevant mitigating evidence. If it had been
the intention of the Court to create a double edged evidence rule
restricting the principles articulated by Penry to cases involving
purely aggravating evidence, there would have been no need in that
case for the Court to adopt and apply the Boyde reasonable
likelihood test; under a double edged evidence theory the Court
could have simply determined that evidence of youth is not purely
aggravating evidence and therefore, following that theory, Penry I
would not apply to require an additional instruction in order to
avoid a constitutional violation. The Court’s decision in Johnson
does not anywhere say that it is adopting any rule except the rule
that when a Penry I violation challenge is brought, the reviewing
court must apply the Boyde test to ascertain if there has been a
violation. Furthermore, the attempt to read an implied double
edged evidence limitation upon Penry I into the Johnson opinion
leads to many inexplicable inconsistencies. Since the principles
articulated in Penry have general application to all capital
23
sentencers in all death penalty jurisdictions, one would expect
that, if there were such a limitation, it would be reflected or
discussed by the Supreme Court decisions subsequent to Johnson –
but to my knowledge there has been none. At least, one would expect
Justice Kennedy, Johnson’s author, to refer to it in other
opinions, but instead he silently and fully joined in all
subsequent opinions by Justice O’Connor in which she forcefully
reaffirmed the view of Lockett, Eddings and Penry I that the
principles set forth therein apply to any relevant evidence or
factor that might tend to have a mitigative effect upon the capital
sentencer’s decision of whether to decline to impose the death
penalty, e.g. Penry II and Tennard.
Consequently, when correctly applied, the clearly established
principles of federal law as determined by the Supreme Court in
Lockett, Eddings, Penry I, McKoy, Boyde, Payne, McClesky, and
Buchanan, require the conclusion that Cole’s evidence of
neurological defect, lack of impulse control, and destructive
family background is relevant mitigating evidence that Texas must
enable and allow its capital sentencer to give full consideration
and full effect in the assessment of his culpability and the
selection of his sentence; and because there is a question whether
the capital sentencer in Cole’s case was enabled and allowed to do
so, we must apply the Boyde test and conclude that there is more
than a reasonable likelihood that the capital sentencer in his case
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was not able to fully consider the evidence for the purpose of
assessing his culpability or to give full effect to the evidence by
choosing the appropriate sentence for Cole and his crime on the
basis of that assessment and all of the evidence and circumstances
of the case.
For these reasons I respectfully dissent from the majority’s
decision to deny an en banc hearing in this case.
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