Dinkins v. Cockrell

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this opinion should not be published and is not precedent except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.
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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.
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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
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“[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
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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).
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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
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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):
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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,
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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
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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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