Drinkard v. Johnson

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
____________________
No. 94-20563
____________________
RICHARD GERRY DRINKARD,
Petitioner-Appellant,
versus
GARY L. JOHNSON, Director, Texas
Department of Criminal Justice,
Institutional Division,
Respondent-Appellee.
_______________________________________________________________
Appeal from the United States District Court for the
Southern District of Texas
_______________________________________________________________
October 7, 1996
Before JOLLY, WIENER, and EMILIO M. GARZA, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
Richard Gerry Drinkard, a Texas death row inmate, seeks a
certificate of probable cause ("CPC") to appeal the district
court's denial of his petition for a writ of habeas corpus.
Construing his application for CPC as an application for a
certificate of appealability ("COA") under 28 U.S.C. § 2253, as
amended by section 102 of the Antiterrorism and Effective Death
Penalty Act of 1996 (the "AEDPA"), Pub. L. No. 104-132, 110 Stat.
1214 (1996), we grant the COA because Drinkard has made a
substantial showing of the denial of a constitutional right.
Turning to the merits of his appeal, the central issue we
decide today is whether a special instruction addressing temporary
insanity caused by intoxication, which was given during the
sentencing phase of Drinkard's trial under section 8.04(b) of the
Texas Penal Code, unconstitutionally prevented the jury from
considering mitigating evidence of intoxication that did not rise
to the level of temporary insanity. Based on our review of
Drinkard's appeal, we conclude that the special instruction did not
have such an effect. Alternatively, and in view of the cogent
dissent of Judge Garza, we are compelled to address the question
whether 28 U.S.C. § 2254(d)(1), as amended by section 104(3) of the
AEDPA, applies to our review of Drinkard's appeal. Holding that
the AEDPA does apply, we conclude that it bars relief because the
state court's decision on Drinkard's claim was neither "contrary
to, [n]or . . . an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court." AEDPA, § 104(3)
(to be codified at 28 U.S.C. § 2254(d)(1)). We therefore affirm
the district court's denial of Drinkard's habeas petition.
I
A Texas jury convicted Drinkard of capital murder in the
deaths of Louann Anthony, Ladeen Hendrix, and Jerry Mullins.1
Evidence of Drinkard's intoxication at the time of the murders was
presented at both the guilt and the sentencing phases of his trial.
1
The three victims were murdered in Ms. Anthony's home. All
three victims received circular head wounds, consistent with wounds
inflicted by the head of a carpenter's hammer. In addition,
Anthony was stabbed three times in the chest; Hendrix was stabbed
several times in the back and abdomen; and Mullins was stabbed
fifteen times in the back.
-2-
At the close of the sentencing phase, the trial court submitted two
special issues to the jury.2 The trial court gave the following
general instruction concerning the two statutory special issues:
[I]n determining each of these Special Issues, you may
take into consideration all of the evidence submitted to
you in the full trial of the case, that is, all of the
evidence submitted to you in the first part of this case
wherein you were called upon to determine the guilt or
innocence of the defendant, and all of the evidence, if
any, admitted before you in the second part of the trial
wherein you are called upon to determine the answers to
Special Issues hereby submitted to you.
Over Drinkard's objection, the trial court also gave the following
special instruction after the general instruction:
Evidence of temporary insanity caused by intoxication may
be introduced by the defendant in mitigation of the
penalty attached to the offense for which he is being
tried. Intoxication means disturbance of mental or
physical capacity resulting from the introduction of any
substance into the body. Temporary insanity caused by
intoxication means that the defendant's mental capacity
was so disturbed from the introduction of the substance
into the body that the defendant did not know that his
conduct was wrong. Therefore, if you find that the
defendant at the time of the commission of the offense
2
At the time of Drinkard's trial, the Texas Code of Criminal
Procedure required the submission of 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;
(2) whether there is a probability that the defendant
would commit criminal acts of violence that would
constitute a continuing threat to society; 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.
TEX. CODE CRIM. PROC. ANN. art. 37.071(b) (West 1981). Since the
issue of provocation was not "raised by the evidence," the third
special issue was not submitted to Drinkard's jury.
-3-
for which he is on trial was temporarily insane as a
result of intoxication, then you may take such condition
into consideration in mitigation of penalty attached for
the offense for which the defendant is being tried.3
The jury answered both special issues affirmatively, and the trial
court sentenced Drinkard to death. On direct appeal, the Texas
Court of Criminal Appeals affirmed. Drinkard v. State, 776 S.W.2d
181 (Tex. Crim. App. 1989). Drinkard did not petition the United
States Supreme Court for writ of certiorari.
After being denied habeas relief by the Texas Court of
Criminal Appeals, Drinkard filed a federal habeas petition, along
with a motion to stay his execution. The district court granted
the motion to stay and ordered the state to respond to Drinkard's
petition. After Drinkard filed an amended federal petition for
habeas relief, the state filed a motion for summary judgment, and
Drinkard filed a motion for partial summary judgment. The district
court granted the state's motion for summary judgment, denied
Drinkard's motion for partial summary judgment, and vacated the
stay. Drinkard filed a notice of appeal and a motion for a CPC to
appeal the district court's denial of his petition. The district
court denied the motion. Drinkard applied for a CPC with this
court in September 1994, which was carried with this appeal. We
granted an emergency motion for stay of execution in December 1995.
3
This instruction was given pursuant to section 8.04(b) of the
Texas Penal Code, which is a provision applicable to capital and
non-capital cases in both the guilt and sentencing phases. See
TEX. PENAL CODE ANN. § 8.04(b) (West 1994).
-4-
II
In determining whether a CPC should issue in this case, we
must consider the question in the light of some relevant statutory
amendments under the AEDPA. Before the President signed the AEDPA
into law on April 24, 1996, a petitioner could not appeal a
district court's ruling on a habeas petition that concerned
detention arising from state court proceedings unless a district or
circuit judge issued a CPC. 28 U.S.C. § 2253, amended by AEDPA, §
102; FED.R.APP.P. 22(b), amended by AEDPA, § 103. In Barefoot v.
Estelle, 463 U.S. 880, 103 S. Ct. 3383, 77 L. Ed. 2d 1090 (1983), the
Court stated the standard governing the issuance of a CPC: the
applicant must make "a substantial showing of the denial of a
federal right." Id. at 893, 103 S.Ct. at 3394-95 (emphasis added).
A "substantial showing" requires the applicant to "demonstrate that
the issues are debatable among jurists of reason; that a court
could resolve the issues (in a different manner); or that the
questions are adequate to deserve encouragement to proceed
further." Id. at 893 n.4, 103 S. Ct. at 3394 n.4 (internal
citations and quotation marks omitted).
Section 102 of the AEDPA amended 28 U.S.C. § 2253 to require
that a petitioner obtain a "certificate of appealability" from a
circuit judge.4 AEDPA, § 102 (to be codified at 28 U.S.C. §
4
There appears to be a discrepancy between the amended version
of 28 U.S.C. § 2253 and the amended version of Rule 22(b) of the
Federal Rules of Appellate Procedure. Section 103 of the AEDPA
amended Rule 22(b) to reflect the change in terminology contained
-5-
2253(c)(1)). Section 2253 now requires that a circuit judge issue
a COA "only if the applicant has made a substantial showing of the
denial of a constitutional right." AEDPA, § 102 (to be codified at
28 U.S.C. § 2253(c)(2)) (emphasis added).
The Tenth Circuit recently held that "Congress drafted the
plain language of the newly enacted § 2253(c)(2) to codify the
Barefoot standard for issuance of a certificate of probable cause."
Lennox v. Evans, 87 F.3d 431, 434 (10th Cir. 1996). Disagreeing
with the Ninth Circuit's holding in Williams v. Calderon, 83 F.3d
281 (9th Cir. 1996),5 the court explained:
Although the Court [in Barefoot] used the word "federal,"
an applicant seeking a certificate of probable cause to
appeal a district court's denial of a § 2254 petition for
writ of habeas corpus must demonstrate a substantial
showing of constitutional error underlying the state
conviction. We have always read the Barefoot standard to
require a habeas petitioner to make a substantial showing
of the denial of a federal constitutional right. Indeed,
in the context of federal habeas review of a conviction
entered in state court, it is the only intelligible
reading.
87 F.3d at 434. We agree with the Tenth Circuit. Accord Reyes v.
Keane, No. 95-2650, 1996 WL 420347, at *4 (2d Cir. July 29, 1996).
in § 2253. AEDPA, § 103 (to be codified at FED.R.APP.P. 22(b)).
Even after the amendment, however, Rule 22(b) still permits either
a district or circuit judge to issue a COA, AEDPA, § 103 (to be
codified at FED.R.APP.P. 22(b)), as opposed to only a circuit judge
under § 2253(c)(1). The posture of this case obviates the need to
address this discrepancy.
5
The Ninth Circuit concluded summarily that the standard for
obtaining a certificate of appealability is "more demanding" than
the Barefoot standard. Id. at 286. The court then "assume[d],
without deciding, that section 2253(c)(2) does not apply
retroactively." Id.
-6-
"Because the standard governing the issuance of a certificate of
appealability requires the same showing as that for obtaining a
certificate of probable cause, application of § 102 of the [AEDPA]
to Petitioner's request for a certificate of probable cause would
not constitute retroactive application of a statute under Landgraf
[v. USI Film Products, ___ U.S. ___, 114 S. Ct. 1483, 128 L. Ed. 2d
229 (1994)]." 87 F.3d at 434. We will therefore treat Drinkard's
application for CPC as an application for COA.
A
Drinkard first argues that the jury instruction concerning
"temporary insanity caused by intoxication" given during the
penalty phase of his trial violated the Eighth Amendment. Drinkard
contends that the jury charge precluded the jury from considering
evidence of lesser degrees of intoxication in mitigation of his
sentence.6
6
Although the state argues that we have already considered and
rejected the challenge that Drinkard raises in this case, our
review of the cases cited by the state convinces us otherwise. See
Lackey v. Scott, 28 F.3d 486 (5th Cir. 1994), cert. denied, ___
U.S. ___, 115 S. Ct. 743, 130 L. Ed. 2d 644 (1995); Barnard v.
Collins, 958 F.2d 634, 639 (5th Cir. 1992), cert. denied, ___ U.S.
___, 113 S. Ct. 990, 122 L. Ed. 2d 142 (1993); James v. Collins, 987
F.2d 1116 (5th Cir.), cert. denied, ___ U.S. ___, 114 S. Ct. 30, 125
L. Ed. 2d 780 (1993); and Cordova v. Collins, 953 F.2d 167 (5th
Cir.), cert. denied, 502 U.S. 1067, 112 S. Ct. 959, 117 L. Ed. 2d 125
(1992).
-7-
(1)
The Eighth Amendment requires an individualized determination
of sentencing in death penalty cases, based on the character of the
defendant, the record of the defendant, and the circumstances of
the offense. Woodson v. North Carolina, 428 U.S. 280, 304, 96
S. Ct. 2978, 2991, 49 L. Ed. 2d 944 (1976) (plurality opinion). In
Lockett v. Ohio, 438 U.S. 586, 98 S. Ct. 2954, 57 L. Ed. 2d 973
(1978), the Supreme Court reversed a death sentence on Eighth
Amendment grounds because the Ohio death penalty statute limited
the consideration of mitigating evidence. According to Lockett, a
statute cannot constitutionally preclude a sentencer "from
considering, as a mitigating factor, any aspect of a defendant's
character or record and any of the circumstances of the offense
that the defendant proffers as a basis for a sentence less than
death." Id. at 604, 98 S.Ct. at 2964 (plurality opinion). In
Eddings v. Oklahoma, 455 U.S. 104, 102 S. Ct. 869, 71 L. Ed. 2d 1
(1982), a majority of the Court embraced Lockett's plurality rule
in striking down a death sentence on Eighth Amendment grounds
because the trial judge limited his consideration of mitigating
evidence. According to Eddings, a sentencer cannot "refuse to
consider, as a matter of law, any relevant mitigating evidence."7
7
See also Penry v. Lynaugh, 492 U.S. 302, 319, 109 S. Ct. 2934,
2947, 106 L. Ed. 2d 256 (1989) ("[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.").
-8-
Id. at 114, 102 S.Ct. at 877. The Eddings Court additionally noted
that the trial judge's actions were "as if the trial judge had
instructed the jury to disregard the mitigating evidence." Id.,
102 S.Ct. at 877.
Drinkard does not, and could not, argue that the Texas special
issues standing alone prevented the jury from considering his
intoxication at the time of the offense. Lackey v. Scott, 28 F.3d
486, 489 (5th Cir. 1994) ("[T]he Texas sentencing scheme does not
preclude the jury from giving mitigating effect to evidence of a
defendant's voluntary intoxication at the time of the offense"),
cert. denied, ___ U.S. ___, 115 S. Ct. 743, 130 L. Ed. 2d 644 (1995);
Cordova v. Collins, 953 F.2d 167, 170 (5th Cir.) (same), cert.
denied, 502 U.S. 1067, 112 S. Ct. 959, 117 L. Ed. 2d 125 (1992); Kelly
v. Lynaugh, 862 F.2d 1126, 1133 (5th Cir. 1988) (same), cert.
denied, 492 U.S. 925, 109 S. Ct. 3263, 106 L. Ed. 2d 608 (1989).
Instead, he challenges the effect of the special instruction on the
special issues. Drinkard argues that the challenged instruction on
"temporary insanity caused by intoxication" prevented the jury from
considering and giving effect to evidence of his intoxication if
the jury concluded that it did not rise to the level of temporary
insanity, evidence that the jury otherwise could have considered
through the two special issues standing alone.8
8
The prohibition against the announcement of new
constitutional rules of criminal procedure on collateral review
contained in the line of cases beginning with Teague v. Lane, 489
U.S. 288, 109 S. Ct. 1060, 103 L. Ed. 2d 334 (1989), does not bar
-9-
The proper standard for reviewing a challenged jury
instruction in the capital sentencing context is "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." Boyde v. California, 494 U.S.
370, 380, 110 S. Ct. 1190, 1198, 108 L. Ed. 2d 316 (1990). This
"reasonable likelihood" standard does not require the petitioner to
prove that the jury "more likely than not" interpreted the
challenged instruction in an impermissible way; however, the
petitioner must demonstrate more than "only a possibility" of an
impermissible interpretation. Id. at 380, 110 S.Ct. at 1198. We
must analyze the challenged jury instruction within the context of
the overall jury charge. Cupp v. Naughten, 414 U.S. 141, 146-47,
94 S. Ct. 396, 400, 38 L. Ed. 2d 368 (1973). "In evaluating the
instructions, we do not engage in a technical parsing of this
language of the instructions, but instead approach the instructions
in the same way that the jury would--with a `commonsense
understanding of the instructions in the light of all that has
relief in this case. Granting the relief Drinkard requests would
not be a "new rule" under the Teague line of cases because it would
represent the application of "a well-established constitutional
principle to govern a case which is closely analogous to those
which have been previously considered in the prior case law."
Penry, 492 U.S. at 319, 109 S.Ct. at 2947 (internal quotation marks
and citation omitted); see also Wright v. West, ___ U.S. ___, ___,
112 S. Ct. 2482, 2497, 120 L. Ed. 2d 225 (1992) (O'Connor, J.,
concurring in judgment) ("If a proffered factual distinction
between the case under consideration and pre-existing precedent
does not change the force with which the precedent's underlying
principle applies, the distinction is not meaningful . . . .").
-10-
taken place at the trial.'" Johnson v. Texas, ___ U.S. ___, ___,
113 S. Ct. 2658, 2669, 125 L. Ed. 2d 290 (1993) (quoting 494 U.S. at
381, 110 S.Ct. at 1198).9
(a)
Focusing initially on the language of the challenged
instruction itself, we conclude that there is not a "reasonable
likelihood" that the jury applied it so as to place consideration
of non-insane intoxication beyond its effective reach.10 The
instruction reads:
9
Although parts of the following analysis may appear contrary
to Johnson's admonition, the dispute between the majority and the
dissent on the possibility of an impermissible interpretation
requires our close examination of the challenged instruction. In
any case, our final conclusion does not rest upon parsing the
language of the instruction, but instead upon a review of the
instruction in the context of the instructions and special issues
as a whole, and in the light of the proceedings before the jury.
10
Evidence that Drinkard was intoxicated at the time of the
murders is clearly "constitutionally relevant." Evidence
implicates the Eighth Amendment under Lockett and Eddings if it
concerns "any of the circumstances of the offense that the
defendant proffers as a basis for a sentence less than death."
Lockett, 438 U.S. at 604, 98 S. Ct. at 2964. As argued by
Drinkard's counsel, a jury could find that a defendant who was
intoxicated at the time of the commission of a dangerous offense
would not be dangerous in prison, where alcohol is not available.
See Parker v. Dugger, 498 U.S. 308, 314, 111 S. Ct. 731, 736, 112
L. Ed. 2d 812 (1991) (stating that evidence that defendant "was under
the influence of large amounts of alcohol and various drugs . . .
during the murders” was mitigating evidence); Skipper v. South
Carolina, 476 U.S. 1, 5, 106 S. Ct. 1669, 1671, 90 L. Ed. 2d 1 (1986),
the Supreme Court held that evidence concerning the defendant's
good behavior in jail while awaiting trial was mitigating evidence,
on the theory that a jury could opt to impose life in prison
instead of a death sentence if convinced that the defendant would
not be dangerous in prison.
-11-
Evidence of temporary insanity caused by intoxication may
be introduced by the defendant in mitigation of the
penalty attached to the offense for which he is being
tried. Intoxication means disturbance of mental or
physical capacity resulting from the introduction of any
substance into the body. Temporary insanity caused by
intoxication means that the defendant's mental capacity
was so disturbed from the introduction of the substance
into the body that the defendant did not know that his
conduct was wrong. Therefore, if you find that the
defendant at the time of the commission of the offense
for which he is on trial was temporarily insane as a
result of intoxication, then you may take such condition
into consideration in mitigation of penalty attached for
the offense for which the defendant is being tried.
In attempting to understand the significance of this instruction to
Drinkard's claim of a deprivation of a constitutional right, we
must consider whether there is a reasonable likelihood that this
instruction, within its four corners, actually precluded the jury
from considering Drinkard's non-insane intoxication as a mitigating
factor. We must first set out, therefore, what the instruction
actually states.
The first sentence clearly indicates that the instruction is
about temporary insanity caused by intoxication not about
intoxication in general. It reads "[e]vidence of temporary
insanity caused by intoxication," not "evidence of intoxication."
(Emphasis added.) The second sentence defines "intoxication" as
the "disturbance of mental or physical capacity resulting from the
introduction of any substance into the body." According to the
third sentence, "temporary insanity caused by intoxication means
that the defendant's mental capacity was so disturbed from the
introduction of a substance into his body that the defendant did
-12-
not know that his conduct was wrong." (Emphasis added.) The
instruction concludes, "Therefore, if you find that the
defendant at the time of the commission of the offense for which he
is on trial was temporarily insane as a result of intoxication,
then you may take such condition into consideration in mitigation
of the penalty . . . ." (Emphasis added.) This concluding sentence
directs the sentencer to take into account a defendant's "temporary
insanity caused by intoxication" if it meets the definition
contained in the preceding sentence.
The instruction effectively tells the jury how to go about
evaluating a defendant's claim that, at the time he committed the
crime, his intoxication rendered him temporarily insane; that is,
that because of his temporary insanity caused by intoxication, he
could not have deliberately caused the death of the deceased--a
specific response to the first special issue under the Texas
capital sentencing scheme, which asks whether the conduct was
deliberate and whether it was committed "with the reasonable
expectation that the death of the deceased or another would
result."11 The instruction thus represents a permissible attempt
to structure how the sentencing jury will consider a particular
mitigating circumstance, namely, temporary insanity caused by
intoxication. See, e.g., Boyde, 494 U.S. at 377, 110 S.Ct. at 1196
(1990) ("States are free to structure and shape consideration of
11
See supra note 2.
-13-
mitigating evidence `in an effort to achieve a more equitable
administration of the death penalty'" (quoting Franklin v. Lynaugh,
487 U.S. 164, 181, 108 S. Ct. 2320, 2331, 101 L. Ed. 2d 155 (1988))).
"In other words, the challenged special instruction invited the
jury affirmatively to consider, as a mitigating factor, any
evidence that the crime had been committed while Drinkard was
temporarily insane as a result of intoxication." Dist.Ct.Op., at
36.
Drinkard argues that the use and placement of the term "such
condition" in the fourth sentence of the challenged instruction
plausibly informs a jury that it can only consider intoxication
("such condition") if it rises to the level of temporary insanity.
We cannot agree, however, that there is a reasonable likelihood
that the jury interpreted the term "such condition" as referring to
the single word, "intoxication." The focus of the instruction from
the first is on "temporary insanity caused by intoxication" as a
mitigating factor, not "intoxication" as a mitigating factor.
Within the concluding sentence itself, "such condition" naturally
refers, as a matter of grammatical construction, to the entire
antecedent phrase, "temporary insanity caused by intoxication."
Thus, we cannot say there is a reasonable likelihood that the jury
interpreted "such condition" as referring to a truncated part of
the preceding phrase, i.e., "intoxication," as opposed to the
entire antecedent phrase, "temporary insanity caused by
intoxication."
-14-
Although we cannot say that there is not some remote
possibility that the jury, as a whole, could have interpreted the
instruction standing alone so as to preclude consideration of non-
insane intoxication, or that a single, isolated, hypothetical
"reasonable juror" could not have interpreted the instruction in
such a manner,12 these are not the touchstones of our inquiry.
Applying the Boyde standard, we simply cannot say that there is a
reasonable likelihood that the jury as a whole, with
"[d]ifferences . . . in interpretation . . . thrashed out in the
deliberative process," Boyde, 494 U.S. at 381, 110 S. Ct. at 1198,
construed the instruction standing alone as precluding
consideration of intoxication that did not rise to the level of
temporary insanity.13
12
Prior to Boyde's "reasonable likelihood" standard, we judged
jury instructions in this context by the "reasonable juror"
standard. See California v. Brown, 479 U.S. 538, 541, 107 S. Ct.
837, 839, 93 L. Ed. 2d 934 (1987).
13
We are unpersuaded by dicta in Tucker v. State, 771 S.W.2d
523 (Tex. Crim. App. 1988), which suggests that the plain language
of the special instruction does not allow a jury to consider
mitigating evidence of intoxication unless it rises to the level of
temporary insanity. Id. at 534 & n.4. The Texas Court of Criminal
Appeals itself has not followed this dicta in subsequent cases.
See, e.g., Ex Parte Rogers, 819 S.W.2d 533, 536-37 (Tex. Crim. App.
1991) (Clinton, J., dissenting) (citing Tucker to argue that court
should have granted petitioner relief because special instruction
on temporary insanity did not enable jury to give effect to non-
insane intoxication).
We are similarly unpersuaded by the dissent in Nethery v.
Collins, 993 F.2d 1154 (5th Cir. 1993), which argued that the
special instruction precluded consideration of non-insane
intoxication based on the "reasonable juror" standard. Id. at
1163-65 (King, J., dissenting). Our holding rests on the
application of the more stringent "reasonable likelihood" standard.
-15-
(b)
Turning to the instructions as a whole, Cupp v. Naughten, 414
U.S. at 146-47, 94 S.Ct. at 400, we cannot say that there is a
reasonable likelihood that the jury interpreted the instructions as
precluding the consideration of Drinkard's intoxication if it did
not rise to the level of temporary insanity. Prior to the
challenged instruction, the trial court clearly and unambiguously
charged the jury to consider all of the evidence in answering the
special issues:
[I]n determining each of these Special Issues, you may
take into consideration all of the evidence submitted to
you in the full trial of the case, that is, all of the
evidence submitted to you in the first part of this case
wherein you were called upon to determine the guilt or
innocence of the defendant, and all of the evidence, if
any, admitted before you in the second part of the trial
wherein you are called upon to determine the answers to
Special Issues hereby submitted to you.
(Emphasis added.) This general instruction necessarily and
undeniably directed the jury to consider Drinkard's evidence of
intoxication in answering the special issues. The fact that the
charge included this affirmative instruction to consider all the
evidence strongly supports our conclusion that there is not a
reasonable likelihood that the jury understood the instructions, as
a whole, as precluding consideration of non-insane intoxication.
Finally, although some language in our recent decision in Rogers v.
Scott, 70 F.3d 340 (5th Cir. 1995), possibly could be read to
support a contrary conclusion, id. at 343-44, the court clearly did
not reach the ultimate question before us today. Id. at 344.
-16-
The inclusion of this general instruction in the charge also
undercuts the possibility of concluding that there is a reasonable
likelihood that the jury interpreted the existence of an explicit
instruction mentioning intoxication in the context of temporary
insanity as implicitly foreclosing the consideration of lesser
forms of intoxication. In other words, we cannot say that it is
reasonably likely that the jury, instructed to consider "evidence
of temporary insanity caused by intoxication," would interpret this
instruction as meaning that it "could consider evidence of
intoxication only if it produces temporary insanity." This
variation on the canon of statutory interpretation expressio unius-
-mentioning one thing implies the exclusion of another--is
particularly inapt where the implication of exclusion flies in the
face of an affirmative direction not to exclude consideration of
any evidence. Cf. Blystone v. Pennsylvania, 494 U.S. 299, 308, 110
S. Ct. 1078, 1084, 108 L. Ed. 2d 255 (1990) (holding that specific
mitigating factor providing for consideration of "extreme"
disturbance, "substantial" impairment, or "extreme" duress did not
foreclose jury's consideration of lesser degrees of disturbance,
impairment, or duress because trial court "made clear to the jury
that [list of statutory mitigating factors] were merely items it
could consider" and trial court instructed jury that it could
consider "any other mitigating matter"). Although the Court in
Boyde explicitly distinguished "those instances where we have found
broad descriptions of the evidence to be considered insufficient to
-17-
cure statutes or instructions which clearly directed the sentencer
to disregard evidence," 494 U.S. at 384, 110 S.Ct. at 1200 (citing
Hitchcock v. Dugger, 481 U.S. 393, 398-99, 107 S. Ct. 1821, 1824-25,
95 L. Ed. 2d 347 (1987), and Lockett, 438 U.S. at 608, 98 S.Ct. at
2966),14 the challenged instruction in this case did not clearly
direct the sentencer to disregard intoxication for all reasons
except to the extent that it supported temporary insanity caused by
intoxication.
(c)
Furthermore, the interplay between the challenged instruction
and the special issues also leads us to conclude that there is not
a reasonable likelihood that the jury applied the challenged
instruction so as to preclude consideration of non-insane
intoxication. The challenged instruction, by its own terms and as
a matter of common sense, is relevant only to the first of the two
14
In Hitchcock, the petitioner challenged the jury charge given
to an advisory jury at the penalty phase of his capital murder
trial. The charge, pursuant to Florida statute, listed seven
specific mitigating factors for the jury to consider. 481 U.S. at
396 n.3, 107 S. Ct. at 1823 n.3. The judge instructed the jury that
"`[t]he mitigating circumstances which you may consider shall be
the following [list of statutory mitigating circumstances].'" Id.
at 1824, 107 S.Ct. at 1824 (quoting Tr. of Advisory Sentence)
(second alteration added). The petitioner argued that none of the
seven factors allowed the jury to consider evidence of his
background, character, and potential for rehabilitation in
mitigation of penalty. Id. at 396-98, 107 S.Ct. at 1823-24. The
Court found that "it could not be clearer that the advisory jury
was instructed not to consider, and the sentencing judge refused to
consider, evidence of nonstatutory mitigating circumstances," and
held that the petitioner's death sentence violated the Eighth
Amendment. Id. at 398-99, 107 S.Ct. at 1824-25.
-18-
special issues that the jury was required to answer under the Texas
capital sentencing scheme and thus would have no effect on the
jury’s consideration of the second special issue.15
The first special issue requires the jury to look back in time
and determine whether the defendant acted deliberately in
committing the murder. Tex. Code Crim. Proc. Ann. art. 37.071(b)
(West 1981) ("[W]hether 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."). The second special issue requires the jury to
look forward to the defendant's future dangerousness. Art.
37.071(b) ("[W]hether there is a probability that the defendant
would commit criminal acts of violence that would constitute a
continuing threat to society."). The challenged instruction itself
asks the jury to consider whether the defendant was temporarily
insane (or, more specifically, "did not know his conduct was
wrong") as a result of intoxication "at the time of the commission
of the offense," The focus of the challenged instruction, like
15
The Texas sentencing scheme does not violate the Constitution
if a jury can give effect to a particular type of mitigating
evidence only when answering one of the special issues. See Graham
v. Collins, ___ U.S. ___, ___, 113 S. Ct. 892, 902, 122 L. Ed. 2d 260
(1993) ("Even it Graham's evidence, like Penry's, had significance
beyond the scope of the first special issue, it is apparent that
Graham's evidence--unlike Penry's--had mitigating relevance to the
second special issue concerning his likely future
dangerousness. . . . This distinction leads us to conclude that
neither Penry nor any of its predecessors "dictates" the relief
Graham seeks within the meaning required by Teague.").
-19-
that of the first special issue, is backward looking to the time of
the offense. We thus think that it is not reasonably likely that
the jury would have applied the instruction to the second special
issue. In other words, even if there is a reasonable likelihood
that the jury somehow interpreted the challenged instruction as
removing from its consideration evidence of Drinkard's non-insane
intoxication in answering the first special issue, we cannot say
that there is a reasonable likelihood that the jury applied the
challenged instruction to the second special issue so as to
preclude consideration of evidence of non-insane intoxication in
answering that issue.
As in Boyde, "[e]ven were the language . . . less clear than
we think, the context of the proceedings would have led reasonable
jurors to believe that evidence of [Drinkard's non-insane
intoxication] could be considered in mitigation" in answering the
second special issue. 494 U.S. at 383, 110 S.Ct. at 1199. In
Boyde, the Court pointed to "[a]ll the defense evidence presented
at the penalty phase" to support its conclusion that there was not
a reasonable likelihood that the jury misinterpreted the
instruction challenged in that case. Id. at 383-84, 110 S.Ct. at
1199-1200. On the other hand, in Graham, the Court emphasized that
"both of Graham's two defense lawyers vigorously urged the jury to
answer `no’ to the special issues based on the evidence" in denying
habeas relief. Graham v. Collins, ___ U.S. at ___, ___, 113 S. Ct.
892, 902, 122 L. Ed. 2d 260 (1993). Here, as in Graham, we examine
-20-
the context within which the instruction was given--specifically,
the arguments of Drinkard's attorneys--to understand the effect of
the instruction. Drinkard's two attorneys described in great
detail at the sentencing hearing how the jury could take into
account Drinkard's intoxication.16
At the sentencing hearing, the state waived its right to open.
Thus, Drinkard's attorneys, Mr. Heath and Mr. Taylor, argued first.
Mr. Heath first introduced the subject of intoxication evidence:
I also want you to think about the long talks we had
about intoxication. Each and every act of wrongdoing
that Mr. Drinkard has committed since his release from
the penitentiary at least by 1979 has been related to
excessive intoxication. The incidents with his wives
that were gone into by the State, you think about it.
Every time the ultimate issue was Mr. Drinkard was
extremely intoxicated when these occurred.
The evidence in this particular case was, at least
by everyone that saw him, was that Mr. Drinkard was
drinking heavily on the evening in question, and we are
told in this jury charge that you can consider
intoxication in mitigation of punishment, and I'm sure
the first thought that comes to your mind is how are you
going to do that in this case?
Trial tr., vol. 36, at 5. Mr. Heath then related the intoxication
evidence to special issue number one, arguing that intoxication had
rendered Drinkard temporarily insane:
. . . Special issue number one talks about a
deliberate act. I submit to you))and I'm still not
convinced Mr. Drinkard by his own hand took all three of
16
The arguments of counsel are relevant to a jury's
interpretation of challenged jury instructions, but the court's
instructions carry substantially more weight. 494 U.S. at 384-85,
110 S.Ct. at 1200. To the extent relevant, the arguments of
counsel must also be analyzed in context. Id. at 385, 110 S.Ct. at
1200.
-21-
those lives. I'm still not convinced there weren't other
individuals involved.
[Objection by the state sustained.]
But where intoxication to the point of temporary
insanity comes in is when we talk about an act
deliberately done. That's what logically comes to mind.
Mr. Drinkard was drunk to the point of temporary
insanity. The State would want you to believe that
Michael Watson was stumbling drunk that night but not
Richard Drinkard. It's amazing. They spent hours
together drinking Schnapps, Miller Lite, and then Mr.
Drinkard topped it off with a Mandrax.
Trial tr., vol. 36, at 5-6. Then Mr. Heath related the
intoxication evidence to special issue number two, arguing that
Drinkard would not be dangerous if not intoxicated:
One thing that you can utilize sitting as a juror is your
common sense. Common sense dictates that on the night in
question Mr. Drinkard was drunk out of his mind, and then
let's talk about this intoxication relationship to all of
the offenses that Mr. Drinkard has committed. How does
that tie in to issue number two? Real simply. Mr.
Drinkard is not a dangerous individual when he is not
intoxicated. I submit to you if Richard Drinkard spends
a life sentence in the Texas Department of Corrections he
is not going to get intoxicated, and if he's not
intoxicated he's not dangerous. Think about it. Every
offense that these individuals got up on the stand and
talked about, every offense, a DWI, the BB gun incident,
all the recent incidents were alcohol and drug-related.
Trial tr., vol. 36, at 6-7. After discussing other aspects of the
case, Mr. Heath returned to the intoxication evidence to conclude
his argument, again arguing temporary insanity with regard to
special issue number one, and intoxication generally with regard to
special issue number two:
I think the record is clear that Ricky Drinkard was
temporarily insane on the night in question, and I
anticipate Mr. Gotschall standing up at sometime and
arguing how can anyone commit acts like these, and I
submit to you they can't in their right mind. Mr.
-22-
Drinkard was not in his right mind that night, and I beg
each and every one of you to consider the facts and the
evidence in this case, and if you do you will come to the
proper conclusion, and that is that the acts were not
done deliberately by reason of temporary insanity and
further that if Mr. Drinkard is locked up, not allowed to
take drugs and not allowed to drink to excess, he will
not be a continuing threat to society. Thank you.
Trial tr., vol. 36, at 11. After Mr. Heath concluded his argument,
Mr. Taylor further argued on behalf of Drinkard. He organized his
discussion of the intoxication evidence in a manner similar to that
argued by Mr. Heath. First, he introduced the subject of
intoxication evidence:
Intoxication, alcohol, drugs is almost at an
epidemic stage in our society. It is))constitutes a
social disease, the toll of which is enormous, not only
in this case but in society in general. Just look at
some of the people that have been on this witness stand.
Look at Jerry Michael Watson. He contributes little or
nothing to society. He works very little and sits around
and gets drunk every day. Doug Bailey drinks every day.
You know, obviously Ricky Drinkard suffers from the
social disease of alcohol and drugs. From the evidence,
from Rick's statements you know that on the night in
question that there were at least two 12-packs of beer.
Ricky in his statement, which is in evidence, which you
can read again, stopped off on the way to his brother's
house, bought a 12-pack of beer. They consumed that.
They consumed two pints of Schnapps. He went and bought
another 12-pack of beer. They consumed that. There was
marijuana. Then there was a Mandrax above all that.
Trial tr., vol. 36, at 13-14. Mr. Taylor then related the
intoxication evidence to special issue number one, arguing that
intoxication rendered Drinkard temporarily insane:
. . . I suggest to you, as Mr. Heath has talked to
you about, that there's no way that anybody can consume
those quantities of alcohol, ingest drugs into their
system and be conscious of what they're doing, and
-23-
there's no way anyone under those circumstances can
deliberately do anything.
The State would have you believe that Ricky Drinkard
deliberately, intentionally with forethought, went to
Louann Anthony's townhouse to take the lives of at least
two individuals, if not three, because they tried to
elicit testimony that tried to show you that Ricky knew
not only Louann Anthony would be there but her sister or
cousin with her boyfriend; and they would have you
believe he deliberately went there with the idea of
killing three people. I suggest to you based on the
evidence and based on alcohol and drugs there's no way
that Richard Drinkard could have in a moment of sanity
been involved in such.
When you read and look at special issue number one,
I suggest to you that the only possible answer that this
jury could put down is "no."
Trial tr., vol. 36, at 14-15. Mr. Taylor then related the
intoxication evidence to special issue number two, arguing that
Drinkard would not be dangerous if not intoxicated:
. . . Some of the acts that the State brought to you
in punishment, the burglaries were all done by a young
man 16 and 17 years of age; and after that the problem
with Ricky Drinkard has been alcohol and drugs. Mr.
Heath))during voir dire you were told that when you read
these questions, if you get that far, that some of the
terms are not going to be defined for you. In fact, in
the two special issues none of the terms are going to be
defined for you. It's whatever or however you wish to
define it.
One of those terms was "society." It can be
whatever you want it to be. If Ricky Drinkard by your
verdict received life imprisonment, his society is going
to be prison life.
[Objection by the state overruled.]
And there are not drugs and there is not alcohol
available in prison life, and I suggest to you that the
social disease of alcohol and drugs are not going to be
available to Ricky Drinkard in the society of prison life
and that there's no evidence in the record whatsoever
that would have you answer special issue number two
"yes." Take away the drugs. Take away the social
disease of alcohol. There's no evidence of violence, and
I suggest to you that a proper verdict with respect to
-24-
special issue number two would be "no" based on the
evidence and based on the law in this case.
Trial tr., vol. 36, at 15-16.
Drinkard's two attorneys each explained in great detail
exactly how the jury could account for intoxication in mitigation
of Drinkard's sentence in answering both special issues. We think
that their explanations would have led the jury to believe that it
could consider Drinkard's intoxication in answering the second
special issue even if it did not rise to the level of temporary
insanity as defined by the challenged instruction.17 At a minimum,
17
The prosecutor mentioned the relevance of the intoxication
evidence to the second issue only in passing. His focus was
instead on the intoxication evidence as it related to the first
special issue:
The Defense talks to you about this issue of temporary
insanity due to intoxication, and I suppose that comes in
mostly))they connected up somehow with both special
issues, but to consider that at all))and I suggest after
you look at the evidence you won't consider that at all.
To consider that at all you have to decide, one, that at
the time of the deaths Mr. Drinkard was intoxicated.
This is 3:00 o'clock in the morning. The))Mike Watson
testified when he dropped his brother off it was around
midnight or so or when he last saw his brother it was
around midnight. There was obviously drinking and
marijuana smoking and that sort of thing. We don't have
any doubt that Mr. Drinkard was intoxicated. That's not
the question.
You have to decide from the evidence, one, whether
Mr. Drinkard was intoxicated and, two, that by reason of
this voluntary intoxication he didn't basically know
right from wrong, he didn't know what he was doing when
he killed these three people was wrong. Okay? You might
find, well, maybe he wouldn't have hit him so many times
if he wasn't drunk. That doesn't make any difference.
You have to find that his intoxication rendered him to
such a state that the defendant))in the charge, the
defendant did not know that his conduct was wrong, and we
know that's not true, because look at the evidence as to
-25-
then, we can say that there is not a reasonable likelihood that the
jury applied the instructions so as to preclude consideration of
lesser forms of intoxication in answering the second or "look-
forward" issue.
(d)
In sum, our larger task is to assure that all relevant
evidence that Drinkard submitted in mitigation of the death penalty
was within the effective reach of the jury, so that it had some
opportunity to consider that evidence and to give to it whatever
mitigating effect it deemed appropriate. Reading the challenged
instruction standing alone, in connection with the general
instruction to consider all the evidence and the special issues
themselves, and, finally, in the light of the proceedings at trial,
specifically, the arguments of Drinkard’s attorneys, we simply
cannot agree with Drinkard that there is a reasonable likelihood
the jury interpreted the instructions in such a way as to exclude
consideration of his non-insane intoxication.
what he did after he killed these three people.
Trial tr., vol. 36, at 22-23 (emphasis added). We do not think
that this single statement negates the voluminous arguments of
Drinkard's attorneys concerning intoxication, as it relates to
answering the second special issue, in determining whether there is
a reasonable likelihood that the jury interpreted the charge in
such a way as to preclude consideration of non-insane intoxication.
See Boyde, 494 U.S. at 385, 110 S. Ct. at 1200 ("`[A] court should
not lightly infer that a prosecutor intends an ambiguous remark to
have its most damaging meaning or that a jury, sitting through a
lengthy exhortation, will draw that meaning from the plethora of
less damaging interpretations.'" (quoting Donnelly v.
DeChristoforo, 416 U.S. 637, 647, 94 S. Ct. 1868, 1873, 40 L. Ed. 2d
431 (1974))).
-26-
(2)
While this appeal was pending, the President signed the AEDPA
into law. Title I of the AEDPA contains a series of amendments to
existing federal habeas corpus law. The insistence of Judge
Garza's dissent compels an alternative holding in this case, which
requires our determining whether the standards of review for state
court decisions on the merits contained in 28 U.S.C. § 2254(d)(1),
as amended by title I of the AEDPA, § 104(3), applies to our review
of Drinkard's appeal. Paragraph (d), as now amended, reads as
follows:
(d) An application for a writ of habeas corpus on
behalf of a person in custody pursuant to the judgment of
a State court shall not be granted with respect to any
claim that was adjudicated on the merits in State court
proceedings unless the adjudication of the claim--
(1) 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; or
(2) resulted in a decision that was based on
an unreasonable determination of the facts in light
of the evidence presented in the State court
proceeding.
AEDPA, § 104(3) (to be codified at 28 U.S.C. § 2254(d)) (emphasis
added).
The state argues that the new standards of review contained in
subsection (d)(1) apply to all habeas cases pending before us when
the AEDPA was signed into law because they are jurisdictional and
procedural in nature. On the other hand, Drinkard relies on the
Tenth Circuit's decision in Edens v. Hannigan, No. 94-3352, 1996 WL
339763, at *8 n.1 (10th Cir. June 20, 1996), and a number of
-27-
district court cases to argue that the standards of review do not
apply to his appeal.18 For the following reasons, we agree with the
18
We must say that we are unpersuaded by the cases cited by
Drinkard. The Tenth Circuit in a footnote concluded summarily that
the new habeas provisions do not apply because only § 107 contains
an effective date provision. Id. In Grady v. Artuz, No. 94 Civ.
7362, 1996 WL 346332, at *26 n.1 (S.D.N.Y. June 24, 1996), the
court summarily concluded that the new provisions do not apply for
the same reason. Id. (citing United States v. Trevino, No. 96 C
828, 1996 WL 252570, at *2 n.1 (N.D.Ill. May 10, 1996)). In
Trevino, the district court concluded that the traditional
presumption against retroactivity applies because the new
provisions would have "a truly retroactive effect." 1996 WL
252570, at *2 n.1 (citing Maitland v. University of Minnesota, 43
F.3d 357, 363 (8th Cir. 1994)). The court makes no attempt to
explain why the provision at issue in Maitland, an amendment to
Title VII barring a person from challenging an action taken
pursuant to consent decrees if that person had actual notice of a
proposed consent decree and a reasonable opportunity to
participate, 43 F.3d at 361, is analogous to the new habeas
provisions for retroactivity purposes. Finally, Drinkard cites
Warner v. United States, No. LR-C-96-220, LR-CR-88-84, 1996 WL
242889, at *8 n.4 (E.D.Ark. May 10, 1996). The court in Warner
summarily concluded that the new provisions do not apply
retroactively because only § 107 contains an effective date
provision, and thus "[a]ccordingly, the Court need not consider
what effect, if any, the amendments . . . might have in this case."
Id. (citations omitted).
Since Drinkard submitted his supplemental briefing on the
AEDPA, the Second Circuit has also held that the habeas provisions
do not apply to cases pending on appeal at the time of the
enactment of the AEDPA. Boria v. Keane, No. 95-2688, 1996 WL
397290 (2d Cir. July 17, 1996). We are also unconvinced by the
Second Circuit's reasoning. The Second Circuit appears to have
interpreted the following language in the Supreme Court's decision
in Landgraf v. USI Film Products, ___ U.S. ___, ___, 114 S. Ct.
1483, 1499, 128 L. Ed. 2d 229 (1994), as requiring an outcome-
determinative test to ascertain retroactivity: "[T]he court must
ask whether the new [statute] attaches new legal consequences to
events completed before its enactment." The Second Circuit
declared with no analysis, "Assuming . . . that the new statute
would require a different outcome [in this case], application of
the new statute to these circumstances would be retroactive." 1996
WL 397290, at *1. Once it determined that the statute was
retroactive, the court looked for a "clear signal from Congress"
that the habeas provisions were to apply retroactively. Id. at *2.
-28-
state and hold that the new standards of review contained in
§ 2254(d)(1) apply to our review of Drinkard's appeal.19
(a)
Landgraf v. USI Film Products, ___ U.S. ___, 114 S. Ct. 1483,
128 L. Ed. 2d 229 (1994), provides the framework for answering the
retroactivity question presented in this case. There, the Supreme
Court addressed the circumstances under which statutory amendments
apply to lawsuits based on events occurring before those
Finding none, the court held that the new habeas provisions did not
apply to the case before it. Id. The Second Circuit, in one
sentence, reduced the Supreme Court's extended attempt in Landgraf
"to reconcile two seemingly contradictory statements found in our
decisions concerning the effect of intervening changes in the law,"
___ U.S. at ___, 114 S.Ct. at 1496, to a simple test: if an
intervening change in the law alters the outcome of a case before
a court, it does not apply retroactively unless Congress has given
some "clear signal" to the contrary. As much as the Second
Circuit's proffered test would happily simplify the task facing
courts in this area, it is not a correct synthesis of the
applicable law. See infra.
19
The Seventh Circuit utilized an analysis similar to the one
that follows and reached this same conclusion in Lindh v. Murphy,
___ F.3d ___, No. 95-3608, 1996 WL 517290 (7th Cir. Sept. 12,
1996)(en banc). In Lindh, the Seventh Circuit first found that the
AEDPA amendment to the federal habeas corpus provision lacked an
effective date provision and so should be given effect with respect
to pending appeals in the absence of any retroactive impact. Id.
at *4. The court then held that under Landgraf’s established
framework for determining retroactivity of a statute, the
amendments were not retroactive and thus should be applied to cases
pending on appeal at the time of the passage of the AEDPA. Id. at
*9. Specifically, the court concluded that the amendments did not
“impair rights a party possessed when he acted, increase a party’s
liability for past conduct, or impose new duties with respect to
transactions already completed,” thus, the court found that the
habeas provision, as amended, controlled consideration of the
pending habeas petition. Id. (citing Landgraf v. USI Film Prods.,
114 S. Ct. 1483, 1505 (1994)).
-29-
amendments.20 The Court declared that when Congress has not
"expressly prescribed the statute's proper reach," we must
determine whether the new statute has a "retroactive effect," ___
U.S. at ___, 114 S.Ct. at 1505, that is, "whether the new provision
attaches new legal consequences to events completed before its
enactment." ___ U.S. at ___, 114 S.Ct. at 1499. In other words,
the question is "whether [the statute] would impair rights a party
possessed when he acted, increase a party's liability for past
conduct, or impose new duties with respect to transactions already
completed." ___ U.S. at ___, 114 S.Ct. at 1505. If we conclude
that the statute does not have a retroactive effect, we should
apply the new statute in rendering a decision in the case before
us. ___ U.S. at ___, ___, 114 S.Ct. at 1501, 1505.
(b)
Because Congress has not "expressly prescribed" the reach of
the new habeas standard of review contained in § 2254(d)(1), as
amended by § 104(3) of the AEDPA, Reyes v. Keane, No. 95-2650, 1996
WL 420347, *3 (2d Cir. July 29, 1996), we must turn to determine
20
In Landgraf, the Supreme Court was attempting to harmonize
"two seemingly contradictory statements in [its] decisions
concerning the effect of intervening changes in the law." Id. at
1496. In Bradley v. School Board of City of Richmond, 416 U.S.
696, 711, 94 S. Ct. 2006, 2016, 40 L. Ed. 2d 476 (1974), the Court
declared, "[A] court is to apply the law in effect at the time it
renders its decision." In Bowen v. Georgetown University Hosp.,
488 U.S. 204, 208, 109 S. Ct. 468, 471, 102 L. Ed. 2d 493 (1988), the
Court declared, "[C]ongressional enactments and administrative
rules will not be construed to have retroactive effect unless their
language requires this result." (Citations omitted).
-30-
whether the new standards of review contained in § 2254(d)(1), as
amended by the AEDPA, have a retroactive effect in this case. The
Court in Landgraf explained, "The conclusion that a particular rule
operates `retroactively' comes at the end of a process of judgment
concerning the nature and extent of the change in the law and the
degree of connection between the operation of the new rule and a
relevant past event." ___ U.S. at ___, 114 S.Ct. at 1499. The
change in law at issue here has no plausible connection to
Drinkard's conduct on the night of the murder. Drinkard cannot
argue that the new standards of review attach new legal
consequences to that conduct by increasing his liability for that
conduct or by imposing new duties on him based on that conduct. In
other words, Drinkard obviously cannot argue that he relied on the
existence of federal de novo review of claims adjudicated on the
merits in state court proceedings the night he killed his three
victims. This provision instead speaks to the power of the federal
courts to grant habeas relief to state prisoners.
As standards of review governing our own review of Drinkard's
appeal, subsection (d)(1) is easily classified as procedural in
nature. Cf. United States v. Mejia, 844 F.2d 209, 211 (5th Cir.
1988) (citation omitted) ("A change in the standard of review is
properly characterized as procedural rather than substantive
because it neither increases the punishment nor changes the
elements of the offense or the facts that the government must prove
at trial."). Pointing to "the diminished reliance interest in
-31-
matters of procedure" and the fact that "rules of procedure
regulate secondary rather than primary conduct," ___ U.S. at ___,
114 S.Ct. at 1502, the Court in Landgraf recognized that "[c]hanges
in procedural rules may often be applied in suits arising before
their enactment without raising concerns about retroactivity." ___
U.S. at ___, 114 S.Ct. at 1502.
Here, the change in procedural rules governing federal habeas
review raises no concerns of retroactivity. Because the new rules
involve federal standards of review of state court decisions,
Drinkard must be able to show that he relied to some extent on the
former federal standards of habeas review in making strategic,
tactical, or other decisions during the state court litigation.
Although during his state post-conviction proceedings, Drinkard may
well have expected that the federal courts would review claims
adjudicated on the merits in those proceedings de novo, "[a]
statute does not operate `retrospectively' merely because it is
applied in a case arising from conduct antedating the statute's
enactment, or upsets expectations based in prior law." ___ U.S. at
___, 114 S.Ct. at 1499 (internal citation and footnote omitted).
In short, Drinkard cannot argue credibly that he would have
proceeded any differently during his state post-conviction
proceedings had he known at the time of those proceedings that the
federal courts would not review claims adjudicated on the merits in
the state court proceedings de novo. Because the new standards of
review do not have a retroactive effect, we hold that they apply to
-32-
our review of Drinkard's appeal from the district court's denial of
his petition for writ of habeas corpus. We thus turn to the task
of applying these new standards to Drinkard's appeal.
(3)
Drinkard turns the task of statutory interpretation on its
head by arguing summarily that § 2254(d)(1), as amended, is
essentially only a codification of Teague v. Lane, 489 U.S. 288,
109 S. Ct. 1060, 103 L. Ed. 2d 334 (1989), and thus constitutes no
change in federal habeas law.21 Instead, "[a]s with any statutory
question, we begin with the language of the statute." Matter of
Greenway, 71 F.3d 1177, 1179 (5th Cir.) (citation omitted), cert.
denied sub nom., Boyce v. Greenway, ___ U.S. ___, 116 S. Ct. 2499,
135 L. Ed. 2d 191 (1996).
(a)
Subsection (d) limits the ability of the federal courts to
grant habeas relief to state prisoners:
21
We see more than a little irony in the suggestion that, after
all the years of failed attempts by Congress to adopt a deferential
standard of review in this area, Wright v. West, ___ U.S. at ___
n.9, 112 S. Ct. at 2491 n.9 (opinion of Thomas, J.); ___ U.S. at
___, 112 S.Ct. at 2498 (O'Connor, J., concurring in judgment), the
passage of subsection (d)(1) represents no more than the
codification of existing Supreme Court precedent, the meaning of
which even the Supreme Court at times has difficulty explaining in
a coherent manner. See, e.g., Wright (exhibiting three different
interpretations of the Teague line of cases in five opinions, none
of which received a majority). We will not complicate the task of
statutory interpretation before us by turning first to the
murkiness that is Teague retroactivity doctrine to determine
whether the language of the statute somehow parallels Supreme Court
precedent in this area.
-33-
(d) An application for a writ of habeas corpus on
behalf of a person in custody pursuant to the judgment of
a State court shall not be granted with respect to any
claim that was adjudicated on the merits in State court
proceedings unless the adjudication of the claim--
(1) 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; or
(2) resulted in a decision that was based on
an unreasonable determination of the facts in light
of the evidence presented in the State court
proceeding.
AEDPA, § 104(3) (to be codified at 28 U.S.C. § 2254(d)) (emphasis
added). It applies when a state prisoner is seeking relief on the
basis of a "claim that was adjudicated on the merits in State court
proceedings." A federal court may grant habeas relief on the basis
of such a claim only if the "decision" resulting from that
adjudication (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." Because a decision that is "contrary to" law is in some
sense a decision "involv[ing] an unreasonable application of" law,
the language of subsection (d)(1) on its face suggests at least one
reading that would render the first clause a nullity. We, however,
must read these two clauses in such a way as to give effect to
both. United States v. Nordic Village, Inc., 503 U.S. 30, 36, 112
S. Ct. 1011, 1015, 117 L. Ed. 2d 181 (1992).
Our analysis of these two clauses begins with the fundamental
proposition that judicial decisions rest on answers to one or more
-34-
of three types of questions: questions of law, questions of fact,
and mixed questions of law and fact (i.e., questions that require
the application of law to facts). In order properly to understand
section (d)(1), it should be read in conjunction with subsection
(d)(2). See United Sav. Ass'n of Texas v. Timbers of Inwood
Forest Associates, 484 U.S. 365, 371, 108 S. Ct. 626, 630, 98
L. Ed. 2d 740 (1988) (indicating that we must read statute
holistically, interpreting each of its portions in light of other
portions). Although not at issue in this case, subsection (d)(2)
of § 2254 applies to a state court's factual determinations. It
bars federal court relief if the state court adjudication of the
claim "resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence." AEDPA, §
104(3) (to be codified at 28 U.S.C. § 2254(d)(2)). Subsection
(d)(2) thus supplies the applicable standard of review for the
second type of question--a question of fact. It is clear to us,
therefore, when the statute is read holistically, that subsection
(d)(1) provides standards of review for questions of law and mixed
questions of law and fact.
The second clause of subsection (d)(1), by its own language,
refers to mixed questions of law and fact because it speaks of an
"unreasonable application of[] clearly established law." Thus,
when reviewing a mixed question of law and fact, a federal court
may grant habeas relief only if it determines that the state court
decision rested on "an unreasonable application of[] clearly
-35-
established Federal law, as determined by the Supreme Court," to
the facts of the case. We read the first clause, on the other
hand, as referring to questions of law. When reviewing a purely
legal question, a federal court may grant habeas relief only if it
determines that a state court's decision rested on a legal
determination that was "contrary to . . . clearly established
Federal law, as determined by the Supreme Court." Thus, the
standard of review will vary depending on whether the question
before the federal court is one of fact, one of law, or mixed.
With this understanding of the language of subsection (d)(2),
we now proceed to apply it to Drinkard's appeal.
(b)
In applying § 2254(d)(1), as amended by the AEDPA, we must
first determine whether Drinkard's claim regarding the challenged
instruction during the sentencing phase of his trial was
adjudicated on the merits in state court proceedings. Our review
of the state post-conviction record indicates that there is no
question that this claim was in fact adjudicated on the merits.
Drinkard's petition for habeas relief in the state trial court
challenged, inter alia, this instruction. The claim appeared in
the state trial court's order designating issues as one of five
that "this Court will resolve." The trial court entered findings
of fact and conclusions of law, recommending to the Texas Court of
Criminal Appeals that it should deny relief. In conclusion of law
number 29, the court held:
-36-
The trial court's instruction on the law of temporary
insanity as a result of intoxication was sufficient to
allow the jury to consider such in mitigation of
punishment; evidence, if any, of voluntary intoxication
could be given full mitigating effect within the scope of
the special issues without additional jury instructions.
Moreover, the trial court's charge on the law of
temporary insanity as a result of intoxication did not
preclude the jury from considering other types of
mitigating evidence, did not mandate additional
instructions, and did not impermissibly limit the jury's
consideration of the applicant's alleged voluntary
intoxication by requiring that it rise to the level of
temporary insanity.
(Internal citations omitted). The Court of Criminal Appeals denied
relief based on "the findings and conclusions of the trial court."22
We now must apply the new standards of review to determine
whether we are permitted to grant relief to Drinkard under the
AEDPA. The first question we ask is whether the state court's
resolution of any legal questions underlying its decision on this
claim was contrary to clearly established federal law. It is clear
from conclusion of law number 29 that the state court made no
error involving purely legal questions. The court correctly
determined the law applicable to Drinkard's claim--that a
sentencing jury cannot be precluded from considering any relevant
mitigating evidence. Lockett; Eddings. We thus cannot say that
the decision of state court was "contrary to" clearly established
law as determined by the Supreme Court.
22
In his brief to this court, Drinkard himself admits that
"the Texas courts clearly addressed the merits of the claim"
concerning the challenged instruction.
-37-
The next question before us is a mixed question of law and
fact. In specific terms, we must decide whether the state court's
determination--that the special instruction on temporary insanity
caused by intoxication did not place beyond the reach of the jury's
consideration the mitigating evidence of intoxication--involved an
unreasonable application of this law to the facts of this case.
This "unreasonable application" standard of review of a state
court decision must mean more than that a federal court may grant
habeas relief based on its simple disagreement with the state court
decision; this would amount to nothing more than a de novo review.
See H.R.Conf.Rep.No. 518, 104th Cong., 2d Sess. 111 (1996),
reprinted in 1996 U.S.C.C.A.N. 944, 944 (indicating in no uncertain
terms that § 2254(d)(1) "requires deference to the determinations
of state courts that are neither `contrary to,' nor an
`unreasonable application of,' clearly established federal law"
(emphasis added)). The use of the word "unreasonable" in
formulating this restrictive standard of review implicitly denotes
that federal courts must respect all reasonable decisions of state
courts. Thus, given the statutory language, and in the light of
legislative history that unequivocally establishes that Congress
meant to enact deferential standards, we hold that an application
of law to facts is unreasonable only when it can be said that
reasonable jurists considering the question would be of one view
that the state court ruling was incorrect. In other words, we can
-38-
grant habeas relief only if a state court decision is so clearly
incorrect that it would not be debatable among reasonable jurists.
In this case, the majority has applied the law of Lockett and
Eddings, using the Boyde reasonable likelihood standard, to the
specific facts of this case, analyzing the special instruction
standing alone and in conjunction with the general instruction, the
special issues, and the arguments of counsel. The majority has
unequivocally concluded that the instruction at issue did not place
mitigating evidence of intoxication beyond the reach of the jury.
Judge Garza, on the other hand, has concluded that the challenged
instruction removed the mitigating evidence of intoxication from
the jury's consideration. It follows that when the jurists
considering the state court ruling disagree in this manner, the
application of the law by the state court is not unreasonable. The
AEDPA therefore bars us from granting relief to Drinkard on this
claim.
B
Drinkard also contends that the trial court should have
instructed the jury to consider convicting him on a lesser-included
offense. A defendant is entitled to a lesser-included offense
instruction only if the evidence warrants such an instruction.
Beck v. Alabama, 447 U.S. 625, 635-38, 100 S. Ct. 2382, 2388-90, 65
L. Ed. 2d 392 (1980); Cordova v. Lynaugh, 838 F.2d 764, 767 (5th
Cir.), cert. denied, 486 U.S. 1061, 108 S. Ct. 2832, 100 L. Ed. 2d 932
(1988). To support such a claim, a petitioner must make "a showing
-39-
that the facts of the case and the laws of the State warrant such
an instruction." Andrews v. Collins, 21 F.3d 612, 629 (5th Cir.
1994), cert. denied, ___ U.S. ___, 115 S. Ct. 908, 130 L. Ed. 2d 790
(1995). Drinkard makes no showing on appeal that such evidence was
produced at trial. Accordingly, we find this claim to be without
merit.23
C
Although Drinkard also challenged the constitutionality of the
trial court's jury instruction regarding voluntary intoxication
given during the guilt-innocence phase of his trial,24 he conceded
in supplemental briefing to this court that "the U.S. Supreme
Court's recent decision in Montana v. Egelhoff, [___ U.S. ___, 116
S. Ct. 2013, 135 L. Ed. 2d 361 (1996)], forecloses [his] challenge to
23
Drinkard also challenges the factfinding procedure used by
the state habeas court. However, as counsel conceded at oral
argument, none of the claims addressed in this appeal turn on
factual findings. Accordingly, any errors in the state's factual
findings did not prejudice Drinkard.
Drinkard raised other claims before the district court, but
failed to brief them on appeal. He instead requested us to
"consider the discussion of all claims and arguments contained in
prior pleadings." Whether we consider issues not briefed on appeal
is a matter of discretion. Compare Black v. Collins, 962 F.2d 394,
399 (5th Cir.) (addressing arguments made in district court even
though not obligated to do so), cert. denied, 504 U.S. 992, 112
S. Ct. 2983, 119 L. Ed. 2d 601 (1992) with Hobbs v. Blackburn, 752
F.2d 1079, 1083 (5th Cir.) (refusing to review "matters [that] have
not been cited as error on appeal and have not been briefed"),
cert. denied, 474 U.S. 838, 106 S. Ct. 117, 88 L. Ed. 2d 95 (1985).
We find Drinkard's non-briefed claims to be without merit, and we
decline to address them further.
24
As required by § 8.04(a) of the Texas Penal Code, the trial
court instructed the jury that "[v]oluntary intoxication does not
constitute a defense to the commission of a crime."
-40-
Tex.Pen.Code sec. 8.04(a), under the Due Process Clause of the
Fourteenth Amendment."25
III
To sum up, we hold today that the standard for granting a
certificate of appealability under the AEDPA is the same as the
Barefoot standard for granting a CPC. Because Drinkard has made a
substantial showing of the denial of a constitutional right with
respect to the application of the special instruction on temporary
insanity caused by intoxication during the sentencing phase, we
GRANT Drinkard's COA. We also hold that the special instruction on
temporary insanity caused by intoxication given under § 8.04 of the
Texas Penal Code did not violate Drinkard's Eighth Amendment rights
by placing mitigating evidence of non-insane intoxication beyond
the effective reach of the jury. We therefore AFFIRM the district
court's denial of habeas relief. In the alternative, we hold that
the new federal standards of review contained in 28 U.S.C. §
2254(d)(1), as amended by § 104(3) of the AEDPA, do not have a
retroactive effect and thus are applicable to habeas cases pending
at the time the President signed the AEDPA into law. Applying
25
Drinkard argues summarily in his supplemental brief that the
Supreme Court's decision in Egelhoff does not foreclose his
"distinct Eighth Amendment challenge to the operation of section
8.04(a) during the guilt-innocence phase of [his] trial." A
careful review of his briefing to this court reveals no "distinct
Eighth Amendment challenge." He relies principally on Sandstrom v.
Montana, 442 U.S. 510, 99 S. Ct. 2450, 61 L. Ed. 2d 39 (1979), and In
re Winship, 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970),
both of which rested on the Due Process Clause of the Fourteenth
Amendment, not the Eighth Amendment.
-41-
those new standards of review to Drinkard's appeal, we conclude
that § 2254(d)(1) bars relief because the state court's decision
on Drinkard's claim was neither "contrary to, [n]or . . . an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court." We therefore VACATE our earlier
stay of execution.
COA GRANTED, Judgment AFFIRMED, and Stay VACATED.
-42-
EMILIO M. GARZA, Circuit Judge, dissenting:
At the guilt-innocence phase of Drinkard's capital murder
trial, Drinkard presented evidence that he was intoxicated at the
time of the murders. Pursuant to § 8.04(a) of the Texas Penal
Code, the trial court instructed the jury as follows: "Voluntary
intoxication does not constitute a defense to the commission of a
crime." The jury returned a guilty verdict. At the punishment
phase of Drinkard's trial, Drinkard once again presented evidence
that he was intoxicated at the time of the murders. Pursuant to
§ 8.04(b) of the Texas Penal Code, the trial court instructed the
jury as follows: "[I]f you find that the defendant at the time of
the commission of the offense for which he is on trial was
temporarily insane as a result of intoxication, then you may take
such condition into consideration in mitigation of penalty attached
for the offense for which the defendant is being tried." The
jurors returned affirmative answers to both special issues
submitted to them, and the trial court imposed a sentence of death.
Today, the majority holds that there is no reasonable likelihood
that Drinkard's jury interpreted the § 8.04(b) instruction given at
the punishment phase of his trial to foreclose consideration of
evidence of intoxication not rising to the level of temporary
insanity. I respectfully disagree with the majority’s analysis and
conclusions; accordingly, I dissent.
The majority opinion makes three distinct holdings in support
of its conclusion that the § 8.04(b) instruction did not violate
the Eighth Amendment. First, the majority holds that the plain
language of the § 8.04(b) instruction concerns evidence of
temporary insanity caused by intoxication, not evidence of
intoxication in general. Second, the majority holds that even if
the jury could have interpreted the § 8.04(b) instruction, standing
alone, to foreclose consideration of lower-level intoxication, the
jury could not have done so in light of the trial court's general
instruction to consider all the evidence. Third, the majority
holds that even if the jury interpreted the § 8.04(b) instruction
to foreclose consideration of lower-level intoxication with regard
to the first special issue, concerning deliberateness, the jury
could not have done so with regard to the second special issue,
concerning future dangerousness. I will address each of these
arguments in turn.
At the outset, however, I emphasize the legal standard that
the Supreme Court has established for such cases: A challenged
jury instruction is unconstitutional if "there is a reasonable
likelihood that the jury has applied the challenged instruction in
a way that prevents the consideration of constitutionally relevant
evidence." Boyde v. California, 494 U.S. 370, 380, 110 S. Ct.
1190, 1198, 108 L. Ed. 2d 316 (1990). In order to meet this
standard, "a defendant need not establish that the jury was more
likely than not to have been impermissibly inhibited by the
instruction." Id.
-44-
The majority opinion correctly cites Boyde's language, but
then fails to follow its holding. According to Boyde, there is no
constitutionally "correct" interpretation of a challenged
instruction. Nor is there a constitutionally "erroneous"
interpretation of a challenged instruction. In accordance with
Boyde, the only relevant inquiry is whether there is a reasonable
likelihood that the jury interpreted the challenged instruction in
a constitutionally impermissible way. If so, the instruction is
unconstitutional, regardless of whether other, constitutionally
permissible interpretations are possible, or even more likely. In
the context of the Supreme Court’s holdings in Lockett v. Ohio, 438
U.S. 586, 98 S. Ct. 2954, 57 L. Ed. 2d 973 (1978), and Eddings v.
Oklahoma, 455 U.S. 104, 102 S. Ct. 869, 71 L. Ed. 2d 1 (1982), our
inquiry must be whether there is a reasonable likelihood that the
jury has applied the challenged instruction in a way that prevents
the consideration of any relevant mitigating evidence, including
evidence of intoxication falling short of temporary insanity. If
we find such reasonable likelihood resulting from the court’s
instruction, we must grant habeas relief.
I
The majority first holds that the plain language of the
§ 8.04(b) instruction, standing alone, does not foreclose
consideration of lower-level intoxication. The challenged jury
instruction reads as follows:
-45-
Evidence of temporary insanity caused by intoxication may
be introduced by the defendant in mitigation of the
penalty attached to the offense for which he is being
tried. Intoxication means disturbance of mental or
physical capacity resulting from the introduction of any
substance into the body. Temporary insanity caused by
intoxication means that the defendant’s mental capacity
was so disturbed from the introduction of the substance
into the body that the defendant did not know that his
conduct was wrong. Therefore, if you find that the
defendant at the time of the commission of the offense
for which he is on trial was temporarily insane as a
result of intoxication, then you may take such condition
into consideration in mitigation of penalty attached for
the offense for which the defendant is being tried.
(emphasis added). The majority contends that there is no
reasonable likelihood that the jury read this instruction to bar
its consideration of lower-level intoxication as a mitigating
factor. However, the prosecution urged such an exclusive
interpretation at trial, and both Texas courts and this Circuit
have read the instruction to be just such a bar.
Specifically, the majority holds that there is no reasonable
likelihood that the jury in Drinkard's case interpreted the words
"such condition" in the phrase "you may take such condition into
consideration" to refer to "intoxication." Maj. op. at 14.
Instead, the majority claims that Drinkard's jury must have
interpreted "such condition" to refer to "temporary insanity caused
by intoxication." Maj. op. at 14. As an initial matter, I find it
hard to believe that Drinkard's jury must have interpreted the
referent in question to refer to a phrase that is not even present
-46-
in the sentence of the instruction at issue.26 Even putting
grammatical semantics aside, I find it entirely unclear whether the
term "such condition" in the instruction refers to "temporarily
insane," to "intoxication," or to the entire phrase "temporarily
insane as a result of intoxication."
The majority's analysis stands at odds both with plain
language interpretations of the statute from which the instruction
was derived and with plain language interpretations of nearly
identical instructions given in other cases. The focus of § 8.04
of the Texas Penal Code is on voluntary intoxication in general.
Accordingly, the Texas Court of Criminal Appeals has stated
explicitly that the statutory language of § 8.04(b) restricts the
circumstances under which evidence of intoxication may be
considered mitigating evidence. See Cordova v. State, 733 S.W.2d
175, 189 (Tex.Cr.App. 1987), cert. denied, 487 U.S. 1240 (1988)
("In Texas, voluntary intoxication is no defense to the commission
26
The relevant sentence in the instruction reads, "Therefore, if you
find that the defendant . . . was temporarily insane as a result of intoxication,
then you may take such condition into consideration . . . ." The grammatical
definition of an antecedent is "a word, phrase, or clause, usually a substantive,
that is replaced by a pronoun usually at a later point." RANDOM HOUSE COLLEGE
DICTIONARY 56 (1980) (emphasis added). The word "insane" in the above-quoted
sentence does not serve as a substantive (i.e., noun), but rather as an
adjective. Consequently, the term "temporarily insane as a result of
intoxication" is not a substantive phrase, but an adjectival phrase. If we
analyze the sentence in the strictest grammatical sense, the only substantive
"condition" in the instruction to which "such condition" could properly refer is
the noun "intoxication." The majority avoids this obstacle, for purposes of its
grammatical analysis, by substituting the phrase "temporary insanity caused by
intoxication," the term that is used in the first sentence of the instruction,
for the phrase "temporarily insane as a result of intoxication," the term that
is used in the sentence relevant to the referent "such condition."
-47-
of a criminal wrong. However, such may become mitigating evidence
to the penalty attached to the offense for which the defendant is
being tried if the intoxication caused temporary insanity.")
(internal citations omitted).
It is therefore not surprising that every published opinion
interpreting the plain language of an instruction given pursuant to
§ 8.04(b), with the exception of that propounded by the majority
today, has concluded that the instruction forecloses the jury's
consideration of evidence of intoxication unless such intoxication
renders the defendant temporarily insane:
While our penal code specifically precludes
voluntary intoxication as a defense to the commission of
crime, mitigation of punishment is possible, but only
where the level of intoxication produces temporary
insanity in the defendant. . . .
. . .
Although appellant was not prevented from
introducing mitigating evidence, the above instruction
required the jury to find her intoxication at the time of
the killings rendered her temporarily insane before they
could consider her drug use in mitigation of her
punishment. The charge on its face instructed the jury
to consider the mitigating evidence only in this light,
thereby implying that it may not have been considered for
any other purpose.
Tucker v. State, 771 S.W.2d 523, 533-34 (Tex.Cr.App. 1988), cert.
denied, 492 U.S. 912 (1989).
[T]his instruction does not even purport to empower the
jury to give mitigating effect to evidence of voluntary
intoxication that does not rise to the level of temporary
insanity. A juror who believed a capital accused was not
so intoxicated as to be incapable of appreciating the
wrongfulness of his action might nevertheless find him
less morally culpable than would have been a sober man
-48-
committing the same crime. Here the juror would have no
way to effectuate this belief either.
Ex Parte Rodgers, 819 S.W.2d 533, 537 (Tex.Cr.App. 1991) (Clinton,
J., dissenting, joined by Baird and Maloney, JJ.).27
We do not reach the merits of the argument that the
instruction denied Rogers his constitutionally secured
right to have the jury consider all of his relevant
mitigating evidence. . . . The jury was allowed to
consider evidence of voluntary intoxication as mitigating
if it was persuaded that Rogers was so intoxicated that
he did not know that what he was doing was wrong. . . .
Here, the jury was allowed to give effect to intoxication
evidence but only at the defined level. The
instruction's fit with Johnson and Eddings v. Oklahoma,
455 U.S. 104, 102 S. Ct. 869, 71 L. Ed. 2d 1 (1982), is
uncertain, and we suggest no answer to that question
today.
Rogers v. Scott, 70 F.3d 340, 343-44 (5th Cir. 1995), cert. denied,
___ U.S. ___, 116 S. Ct. 1881 (1996) (emphasis added).28
My dissent is not based on the operation of the
statutory special issues in isolation in Nethery's case;
instead, it is based on another instruction that the
trial court submitted along with the special issues that,
in effect, took all three of the special issues out of
operation with respect to Nethery's evidence of
intoxication. . . .
A reasonable juror could read that instruction as
providing that Nethery's evidence of intoxication could
not be considered at all))including under the special
27
The majority in Ex Parte Rodgers did not undertake an interpretation
of the § 8.04(b) instruction. Unlike Drinkard, the petitioner in Ex Parte
Rodgers did not object to the trial court's jury charge, and the per curiam
opinion disposed of all of the petitioner's claims by finding "that the findings
and conclusions entered by the trial court are supported by the record and upon
such basis the relief sought is denied." Ex Parte Rodgers, 819 S.W.2d at 534.
28
Unlike Drinkard, the petitioner in Rogers did not object to the
§ 8.04(b) instruction given at the punishment phase of his trial. We thus held
his Eighth Amendment claim procedurally barred. 70 F.3d at 343-44.
-49-
issues))unless Nethery was so intoxicated that he was
rendered temporarily insane. . . .
. . . Because Nethery's jury was entirely precluded
from considering the evidence of his non-insane state of
intoxication, I believe that the § 8.04 instruction given
by the trial judge in Nethery's case was a straight-
forward violation of this well-established Eighth
Amendment principle.
Nethery v. Collins, 993 F.2d 1154, 1163-65 (5th Cir. 1993), cert.
denied, ___ U.S. ___, 114 S. Ct. 1416 (1994) (King, J.,
dissenting).29
Perhaps most troubling about the majority's reading of the
§ 8.04(b) instruction in Drinkard's case is the fact that the
State's brief concedes that instructions given pursuant to
§ 8.04(b) foreclose jurors' consideration of evidence of
intoxication not rising to the level of temporary insanity:
Texas law permissibly limits the circumstances under
which voluntary intoxication can be given mitigating
effect to those instances in which it renders the
defendant unable to determine right from wrong or
incapable of conforming his conduct to the law. . . .
By requiring that voluntary intoxication result in
temporary insanity, as defined by state law, Texas
properly restricts the jury's consideration of mitigating
evidence to those circumstances in which the intoxication
actually results in a reduced culpability.
Respondent-Appellee's Opposition to Application for Certificate of
Probable Cause, at 24-25 (emphasis added).30
29
The majority in Nethery expressly declined to address the merits of
the constitutionality of the § 8.04(b) instruction, holding the claim
procedurally barred. Nethery, 993 F.2d at 1161 n.26.
30
Instead of arguing that the instruction does not foreclose
consideration of evidence of intoxication not rising to the level of temporary
insanity, the State's brief argues that such evidence is not constitutionally
-50-
In addition to the assertions of the State in its briefs and
at trial, and in addition to the weight of precedent, common sense
also dictates that the § 8.04(b) instruction in Drinkard's case
"clearly directed the sentencer to disregard evidence." Boyde, 494
U.S. at 384, 110 S. Ct. at 1200. Although the § 8.04(b)
instruction in Drinkard's case did not explicitly prohibit jurors
from considering evidence of lower-level intoxication, the Supreme
Court has held that an instruction telling a jury what it “may”
consider necessarily implies that it may not consider other
factors. This truism is embodied in the ancient legal maxim
expressio unius est exclusio alterius, the expression of one thing
is to the exclusion of another.
The Supreme Court in Hitchcock v. Dugger endorsed exactly that
inferential step, finding that "it could not be clearer" that, by
instructing advisory jurors that they could consider evidence of
certain statutory factors, a trial judge instructed them that they
could not consider evidence of other, nonstatutory factors.
Hitchcock, 481 U.S. 393, 398-99, 107 S. Ct. 1821, 1824-25, L. Ed.
2d 347 (1987), vacated on other grounds, ___ U.S. ___, 112 S. Ct.
3020 (1992). The rationale of Hitchcock supports an interpretation
of the § 8.04(b) instruction in Drinkard's case))which
affirmatively stated which evidence of intoxication jurors “may”
relevant. As the majority acknowledges, evidence of intoxication at the time of
the murders is clearly constitutionally relevant. Maj. op. at 11 n.10.
-51-
consider))as "clearly directing" jurors not to consider evidence of
intoxication not resulting in insanity.
In light of the overwhelming number of § 8.04(b)
interpretations))from the parties, from members of this Court, and
from Texas state courts))to reach conclusions opposite that of the
majority, I do not accept the majority's unsupported conclusions
regarding the plain language of the § 8.04(b) instruction in
Drinkard's case.
II
The majority next holds that the trial court's general
instruction directing the jury to "consider all the evidence"
remedied any infirmity in the more specific § 8.04(b) instruction.
However, the Supreme Court has held that such a contradictory,
permissible instruction in a jury charge will not cure an otherwise
constitutionally impermissible instruction:
Nothing in these specific sentences or in the charge as
a whole makes clear to the jury that one of these
contradictory instructions carries more weight than the
other. Language that merely contradicts and does not
explain a constitutionally infirm instruction will not
suffice to absolve the infirmity. A reviewing court has
no way of knowing which of the two irreconcilable
instructions the jurors applied in reaching their
verdict.
Francis v. Franklin, 471 U.S. 307, 322, 105 S. Ct. 1965, 1975, 85
L. Ed. 2d 344 (1985). The majority sidesteps this issue by
suggesting that the two instructions are not at odds))that there is
no reasonable likelihood that Drinkard's jury interpreted the trial
-52-
court's general instruction and the § 8.04(b) instruction to
contradict each other. In light of both common sense and relevant
case law, I find such an analysis untenable.
There is more than one way that Drinkard's jury could have
interpreted the general instruction and the § 8.04(b) instruction
to "contradict" each other. The jury could have, of course,
interpreted the general instruction to mean "Do consider evidence
of lower-level intoxication," while interpreting the § 8.04(b)
instruction to mean "Do not consider evidence of lower-level
intoxication." The jury could have interpreted the general
instruction as constituting the general rule and interpreted the
§ 8.04(b) instruction to carve out a specific exception. Further,
the jury could have squared the two instructions through textual
analysis. The general instruction directs jurors that they may
consider all of the evidence "in determining each of these Special
Issues." Consistent with this instruction, the jury could have
considered all of Drinkard's evidence of intoxication, but only for
the purpose of determining whether such evidence rose to the level
of temporary insanity. Thus, the jury could have considered such
evidence in the process of determining the answers to the special
issues, but still could have considered themselves foreclosed from
considering evidence of lower-level intoxication in mitigation of
punishment, pursuant to the § 8.04(b) instruction. This
-53-
interpretation renders the instructions facially complementary,
though clearly unconstitutional.
I do not proffer any of these interpretations as the "correct"
interpretation of the jury charge in Drinkard's case, nor do I
claim that any one interpretation is the most likely. Such claims
are not what the law requires. I present these possible
interpretations in order to illustrate the uncertainty surrounding
the relationship between these two instructions.
Simply put, no language in either the general instruction or
the § 8.04(b) special instruction given in Drinkard's case provides
any indication of how the two instructions should relate to each
other. This sense of uncertainty was explicitly recognized by
another panel of our Court when describing an essentially identical
jury charge:
The trial judge did not explicitly instruct the jury
whether it could consider the evidence of intoxication in
answering the two questions. It did instruct that the
jury could consider all evidence submitted during both
the guilt and punishment phases of the trial, and,
significantly, counsel argued the weight the jury ought
to accord to the intoxication evidence. Nonetheless, we
cannot say with confidence how the jury put the
instruction and the questions together. We are
describing the uncertainty because it is the context in
which the procedural bar was invoked.
Rogers, 70 F.3d at 344. We simply do not know how Drinkard's jury
put these instructions together. In the face of such uncertainty,
I do not accept the majority opinion's unsupported assertion that
"[t]his general instruction necessarily and undeniably directed the
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jury to consider Drinkard's evidence of intoxication in answering
the special issues." Maj. op. at 16.31
III
Third, the majority holds that the § 8.04(b) instruction by
its own terms applied to only the first special issue, concerning
whether the murder was committed deliberately. Therefore, the
argument continues, the instruction could not have foreclosed
jurors' consideration of Drinkard's evidence of intoxication with
regard to the second special issue, involving future dangerousness.
This portion of the majority's analysis is flawed in several
respects.
The majority's analysis is exactly the type of "technical
hairsplitting" that the Supreme Court has repeatedly warned us not
to perform when analyzing challenged instructions under the
"reasonable likelihood" standard:
In evaluating the instructions, we do not engage in a
technical parsing of this language of the instructions,
but instead approach the instructions in the same way
that the jury would))with a "commonsense understanding of
the instructions in the light of all that has taken place
at trial."
31
More importantly, the Supreme Court disagrees. As I have previously
noted, Hitchcock v. Dugger supplies the inferential step that the majority
ignores))”it could not be clearer” that, by instructing advisory jurors that they
could consider evidence of certain statutory factors, a trial judge instructed
them that they could not consider evidence of other, nonstatutory factors. See,
supra at 9 (citing Hitchcock, 481 U.S. at 398-99, 107 S. Ct. 1824-25).
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Johnson v. Texas, 509 U.S. 350, 368, 113 S. Ct. 2658, 2669, 125 L.
Ed. 2d 290 (1993) (quoting Boyde, 494 U.S. at 381, 110 S. Ct. at
1198).
Jurors do not sit in solitary isolation booths parsing
instructions for subtle shades of meaning in the same way
that lawyers might. Differences among them in
interpretation of instructions may be thrashed out in the
deliberative process, with commonsense understanding of
the instructions in the light of all that has taken place
at the trial likely to prevail over technical
hairsplitting.
Boyde, 494 U.S. at 380-81, 110 S. Ct. at 1198. The majority quotes
the language "at the time of the commission of the offense" in one
clause of the § 8.04(b) instruction, uses that language to impose
a temporal restriction on the whole instruction, draws a
distinction between the "backward-looking" first special issue and
the "forward-looking" second special issue, and concludes that the
jurors must have fenced off the second special issue as a safe
haven, a sort of limitation-free zone, for the consideration of
evidence of voluntary intoxication. This portion of the majority
opinion provides a perfect illustration of a court "parsing
instructions for subtle shades of meaning in the same way that
lawyers might."
Even parsing the instructions, I still do not reach the
majority's conclusions. Breaking down the language and grammar of
the § 8.04(b) instruction given in Drinkard's case provides no
support for the majority's conclusion that the instruction affects
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only the first special issue. The relevant portion of the
instruction is a conditional sentence, following an "if/then"
structure:
[I]f you find that the defendant at the time of the
commission of the offense for which he is on trial was
temporarily insane as a result of intoxication, then you
may take such condition into consideration in mitigation
of penalty attached for the offense for which the
defendant is being tried.
The word "if" signals the condition of the sentence, the word
"then" signals the contingency. Both parts of the instruction have
temporal components. The condition ("If you find . . .") is a
future condition; it will be realized, if at all, in the jury room.
However, this future condition is restricted in time, because the
direct object of the future verb "find" is a dependent clause with
a past tense verb ("was [temporarily insane]"). Likewise, the
contingency ("then you may . . .") is a future contingency; it will
occur, if at all, in the jury room. However, the contingency of
the instruction contains no language that restricts its scope to
"at the time of the commission of the offense," or any other past
framework. Restating the instruction using symbols, the jury was
thus instructed "If you find (in the future) that x occurred (in
the past), then you may do y (in the future)." Any restriction on
the application of the instruction would have to appear in the
contingency ("then you may . . ."), which directs the jury how to
apply certain evidence, not in the condition ("If you find . . ."),
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which only identifies the circumstances under which the contingency
will be realized.
When reduced to its basic elements, the majority's analysis
states that language in the "If you find . . ." part of the
instruction imposes a temporal restriction on the "then you may
. . ." contingency. Such a thesis is contrary to common sense and
unsupported in the language of the instruction. I do not find the
words "only with regard to the first special issue" implicit in the
language "you may take such condition into consideration in
mitigation of penalty attached for the offense for which the
defendant is on trial."
The majority's position is also directly contrary to the
arguments of the State's attorneys. For if the jury's findings as
to "backward-looking" events were relevant only to the "backward-
looking" special issue, jurors could not use past events to predict
future behavior. As Mr. Millin argued for the State:
The second issue involves whether or not you find that
there's a probability that Mr. Drinkard will commit
future acts of violence, criminal acts of violence, such
that they would be or he would be a continuing threat to
society. In this regard, as I'm sure you discussed on
the voir dire process, that basically the best way))the
only way that a person can predict another's future
conduct is based on his past conduct. We have to prove
beyond a reasonable doubt that there's such a probability
that this person will act in the future as he's acted in
the past because we would never be able to prove to a 100
percent certainty.
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Trial transcript, vol. 36, at 25-26. Therefore, both in terms of
grammar, technically parsed in the most legalistic sense, and in
terms of common sense, no language in the challenged instruction
directs jurors to cabin the effect of the instruction within the
first special issue.
The majority is quite right to point out that challenged
instructions should be analyzed in the context in which they are
made. Cupp v. Naughten, 414 U.S. 141, 146-47, 94 S. Ct. 396, 400,
38 L. Ed. 2d 368 (1973). The majority is also correct to consider
the arguments of Drinkard's attorneys as part of that context.
Boyde, 494 U.S. at 384-85, 110 S. Ct. at 1200. Both of Drinkard's
attorneys did argue, quite forcefully, that the jury should
consider the fact that Drinkard was intoxicated at the time of the
murders when deciding both of the special issues. However, the
majority's analysis in this regard is remiss in two respects.
First, while the arguments of counsel are relevant a jury's
interpretation of challenged jury instructions, the court's
instructions themselves carry substantially more weight. Boyde,
494 U.S. at 384-85, 110 S. Ct. at 1200. Therefore, an attorney's
arguments to the jury are simply insufficient to cure an otherwise
unconstitutional instruction given by the court. Taylor v.
Kentucky, 436 U.S. 478, 488-89, 98 S. Ct. 1930, 1936, 56 L. Ed. 2d
468 (1978).
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Second, if the majority opinion is to rely on a contextual
analysis, it must look at the challenged instruction in the context
of "all that has taken place at trial," Boyde, 494 U.S. at 381, 110
S. Ct. at 1198, not just those parts of the proceedings that
support the majority's conclusions. A review of the trial court
record reveals that Drinkard's intoxication evidence was a central
issue. At the guilt-innocence phase of the trial, Drinkard
presented evidence that he was intoxicated at the time of the
murders. However, at the close of the guilt-innocence phase, the
trial court specially instructed the jury that voluntary
intoxication does not constitute a defense to the commission of a
crime under Texas law. The message of the § 8.04(a) instruction
was clear: Intoxication evidence is simply not relevant.
At the penalty phase of the trial, Drinkard once again
presented evidence that he was intoxicated at the time of the
murders. At the close of evidence the State waived its right to
open closing arguments. Drinkard's attorneys then argued that the
jury could answer both special issues "no" based on the
intoxication evidence. They argued, with regard to special issue
number one, that Drinkard did not act deliberately because at the
time of the murders he had been intoxicated to the point of
temporary insanity; he did not know right from wrong. Then they
argued, with regard to special issue number two, that Drinkard
would not be dangerous in the future because he was dangerous only
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when he was drunk, and he would not be able to drink while
incarcerated. As support for this argument, Drinkard's attorneys
pointed to evidence concerning his intoxication during violent
episodes in his past, including the murders for which Drinkard was
on trial. As the majority opinion details, however, these
arguments with regard to the second special issue did not focus on
intoxication to the point of temporary insanity, but instead
focused on intoxication generally, necessarily including evidence
of lower-level intoxication.
In the State's closing argument, Mr. Millin made two direct
references to the trial court's § 8.04(b) instruction. Neither
reference limits itself to the first special issue. Indeed, in the
portion of Mr. Millin's argument quoted by the majority in a
footnote, the State suggests explicitly that temporary insanity is
a prerequisite to the consideration of intoxication evidence under
both special issues:
The Defense talks to you about this issue of temporary
insanity due to intoxication, and I suppose that comes in
mostly))they connected up somehow with both special
issues, but to consider that at all))and I suggest after
you look at the evidence you won't consider that at all.
To consider that at all you have to decide, one, that at
the time of the deaths Mr. Drinkard was intoxicated.
. . . and, two, that by reason of this voluntary
intoxication he didn't basically know right from wrong,
he didn't know what he was doing when he killed these
three people was wrong.
Trial transcript, vol. 36, at 22-23 (emphasis added); see also
Trial transcript, vol. 36, at 25 ("He wasn't intoxicated to such an
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extent he didn't know right from wrong. That's what you have to
find to give him any kind of break on the intoxication.") (emphasis
added). That is the context in which Drinkard's jury heard the
trial court's jury charge. That is the context in which Drinkard's
jury heard a general instruction to "consider all the evidence
submitted to you," and a special instruction, which concluded:
[I]f you find that the defendant at the time of the
commission of the offense for which he is on trial was
temporarily insane as a result of intoxication, then you
may take such condition into consideration in mitigation
of penalty attached for the offense for which the
defendant is being tried.
In my opinion, the message of the § 8.04(b) instruction))especially
in light of the § 8.04(a) instruction given earlier))is clear:
Intoxication evidence is relevant only under the defined
circumstances.
The majority today holds that there is no reasonable
likelihood that Drinkard's jury felt precluded by the instructions
of the court from considering Drinkard's proffered evidence of
intoxication not rising to the level of temporary insanity. In so
doing, the majority concludes that there is no reasonable
likelihood that Drinkard's jury interpreted the § 8.04(b) special
instruction as the State's attorneys interpret it, as Texas courts
have interpreted it, and as several members of our Court have
previously interpreted it. In the full context of this trial, I
find that such misinterpretation was reasonably likely.
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IV
Finally, because the majority would decide this case on the
alternative ground that the recently passed Antiterrorism and
Effective Death Penalty Act (“AEDPA”) would deny habeas relief, I
briefly address this issue as well. During the pendency of this
appeal, the President signed into law the AEDPA, which (among other
things) amends federal habeas corpus law. This new law narrows the
circumstances under which federal courts may grant writs of habeas
corpus on behalf of people held under judgment of state courts.
The state court’s temporary insanity instruction and subsequent
decision so clearly denied Drinkard the constitutional guarantees
of Lockett and Eddings, however, that habeas relief is justified
even under the AEDPA.
The relevant section of the habeas corpus statute, 28 U.S.C.
§ 2254(d)(1), as amended by AEDPA § 104(3)(d), states:
(d) An application for a writ of habeas corpus on
behalf of a person in custody pursuant to the judgment of
a State court shall not be granted with respect to any
claim that was adjudicated on the merits in State court
proceedings unless the adjudication of the claim ))
(1) 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 . . . .
Because Congress included neither an effective date for this
amended provision nor a clear statement regarding its retroactive
application to cases pending on appeal, it is not apparent whether
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we should apply the AEDPA in this case. As an initial matter, I
agree with the majority’s careful analysis and conclusions that the
statute is a procedural change in the standard of review, and that
as such it should have retroactive effect under Landgraf v. USI
Film Products, ___ U.S. ___, ___, 114 S. Ct. 1483, 1499-1505, 128
L. Ed. 2d 229 (1994), and United States v. Mejia, 844 F.2d 209, 211
(5th Cir. 1988). I also agree with the majority’s determination
that the state court decided Drinkard’s claims on the merits. Maj.
op. at 29-33, 36-37. However, as to the majority’s substantive
application of the AEDPA and its ultimate decision on the merits of
Drinkard’s habeas petition, I respectfully disagree.
A
The majority reviews the state court’s determinations of law
separately from mixed questions of law and fact. It holds that, as
a matter of law, the trial court’s correct identification of the
applicable constitutional standard guarantees that the state
court’s decision was not contrary to clearly established federal
law. Although the state court apparently recognized that a
sentencing judge may not bar a jury from considering any relevant
evidence, § 2254(d)(1) directs us to consider a different issue.
Under the AEDPA, we must consider whether the state court’s
adjudication “resulted in a decision contrary . . . to clearly
established Federal law . . . .” (emphasis added). It is plain
that identification of the proper standard is not enough; the state
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court’s decision must accord with the Supreme Court’s
interpretation of the Constitution. For the reasons I have stated
above, I think it is clear that the effect of the trial court’s
§ 8.04(b) instruction was to bar the jury’s consideration of
mitigating evidence. Thus the trial court’s decision was contrary
to the Supreme Court’s interpretation of the Eighth Amendment in
Lockett and Eddings.
B
The majority also holds that, as a mixed question of law and
fact, the state court did not unreasonably apply federal law in
determining that its limiting instruction did not violate the
Eighth Amendment. Specifically, the majority bases its reasoning
on the principle that the AEDPA’s “‘unreasonable application’
standard of review of a state court decision must mean more than
that a federal court may grant habeas relief based on its simple
disagreement with the state court decision; this would amount to
nothing more than a de novo review.” Maj. op. at 38.
I think the majority has the standard of review exactly wrong.
The Supreme Court has consistently held that application of
constitutional law to facts in habeas cases requires an
independent, de novo determination by federal courts. Wright v.
West, 505 U.S. 277, 301-03, 112 S. Ct. 2482, 2495-96, 120 L. Ed. 2d
225 (1992) (O’Connor, J., concurring) (the Supreme Court has
consistently applied a de novo standard of review in mixed
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questions of constitutional law and fact in habeas corpus cases);
see also Brown v. Allen, 344 U.S. 443, 507, 73 S. Ct. 397, 446, 97
L. Ed. 469 (1953), overruled on other grounds by Townsend v. Sain,
372 U.S. 293, 312 (1963) (“Thus, so-called mixed questions or the
application of constitutional principles to the facts as found
leave the duty of adjudication with the federal judge.”); Irvin v.
Dowd, 366 U.S. 717, 723-28, 81 S. Ct. 1639, 1643-45, 6 L. Ed. 2d
751 (1961) (reviewing de novo state court determinations of mixed
questions of law and fact in federal habeas case); Brewer v.
Williams, 430 U.S. 387, 403, 97 S. Ct. 1232, 1242, 51 L. Ed. 2d 424
(1977) (same); Cuyler v. Sullivan, 446 U.S. 335, 342, 100 S. Ct.
1708, 1715, 64 L. Ed. 2d 333 (1980) (same); Miller v. Fenton, 474
U.S. 104, 112, 106 S. Ct. 445, 450, 88 L. Ed. 2d 405 (1985) (same).
The Supreme Court has made clear that federal courts must undertake
independent, de novo review of state court habeas decisions on
appeal. I am unwilling to depart from this unbroken line of
Supreme Court precedent, especially since the language of
§ 2254(d)(1), as amended, does not demand it.32
32
For this unprecedented deferential standard of review, the majority
cites only the word “unreasonable” in § 2254(d)(1) and one piece of legislative
history, indicating that the AEDPA “requires deference to the determinations of
state courts that are neither ‘contrary to,’ nor an ‘unreasonable application
of,’ clearly established federal law.” H.R. Conf. Rep. No. 518, 104th Cong., 2d
Sess. 111 (1996), reprinted in 1996 U.S.C.C.A.N. 944, 944. This statement in the
conference report does not change the standard of review, it merely restates the
standard of the AEDPA, dictating that we should not upset state court decisions
that do not offend federal constitutional law. I would not overturn established
Supreme Court precedent with so thin a lever.
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The majority continues by stating that an application of law
to facts is unreasonable only where “reasonable jurists would be of
one view that the state court ruling was incorrect.” This cannot
be the standard of review. Where a federal court of appeals
determines that a state criminal decision is contrary to federal
law, § 2254(d)(1) does not require the unanimous consent of the
federal bench for habeas relief. Indeed, it does not even require
unanimity among a panel of judges considering the case. The
determination of reasonableness must consider only the propriety
and correctness of the state court’s actions in the context of
federal guarantees established by the Supreme Court. If a federal
court “disagrees” with the state court’s application of federal
law))if it finds that the state court unreasonably applied the law
of the land))that federal court must grant habeas relief under
§ 2254(d)(1). It is well established that where state and federal
courts disagree about the meaning of federal law, the
interpretation of the federal courts must prevail. Brown, 344 U.S.
at 507, 73 S. Ct. at 446.
As I have catalogued in this dissent, I think it clear that
the state court’s temporary insanity instruction denied Drinkard
the constitutional guarantees of Lockett and Eddings. The
misapplication of the Eighth Amendment to the facts of this case
justify relief under § 2254(d)(1), whether or not we apply the
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AEDPA. Thus I respectfully disagree with the majority’s
conclusions, and, accordingly, I dissent.
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