Carl Blue v. Rick Thaler, Director, 665 F.3d 647

In 1994, a Texas jury convicted Blue of capital murder and sentenced him to death; direct appeal affirmed in 1996.
Blue’s initial state habeas in 1999 was denied; a federal district court vacated the death sentence due to an adverse-mental-state impact of an expert’s testimony suggesting Blackness as a predictor of future danger.
A second punishment-phase trial in 2001 again yielded a death sentence; Texas Court of Criminal Appeals affirmed in 2003 and denied a second state habeas in 2004.
Blue filed a skeletal federal habeas petition in 2005; the district court stayed to allow a third state habeas proceeding under Atkins v. Virginia.
CCA dismissed the third Atkins application as abuse of the writ, determining Blue failed to make a prima facie showing of mental retardation; federal petition was denied in 2010.
On appeal, Blue seeks COA on Atkins and several Eighth Amendment challenges to Texas’s punishment-phase jury instructions; the court denies the COA.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the district court properly denied COA on Atkins claim	Blue argues the CCA deprived him of a prima facie Atkins showing	Blue failed to present sufficient prima facie evidence under Briseño/Hearn framework; AEDPA deference applies	No COA; district court's Atkins ruling reasonable under AEDPA
Whether the punishment-phase jury instructions violated Penry-type mitigation rights	Blue contends Beazley/Beazley-line error: instructions blocked full consideration of mitigating evidence	Beazley upholds constitutionality; full spectrum of mitigation can be considered under § 2(e)(1) and § 2(f)(4)	COA denied;Beazley controls; no debate among reasonable jurists
Whether there is error in the failure to assign burden of proof on mitigation	Blue argues no burden of proof on mitigation violates due process	Fifth Circuit precedent holds no required burden on mitigation; Ring/Apprendi distinctions preserved	COA denied; district court correctly applied precedent
Whether the 10-12 Rule about deadlock in the death-penalty sentencing is unconstitutional	Blue contends the rule misleads jurors about their role	Jones v. United States and Romano-based authority uphold the rule; Teague bars new-rule theories	COA denied; rule upheld; Teague bar applies

Atkins v. Virginia, 536 U.S. 304 (U.S. 2002) (death penalty unconstitutional for mentally retarded individuals)
Beazley v. Johnson, 242 F.3d 248 (5th Cir. 2001) (mitigating evidence can be given effect under broad definition in Texas scheme)
Beazley v. Cockrell, Beazley v. Cockrell, 534 U.S. 945 (2001) (denial of relief; beazley precedent binding)
Nelson v. Quarterman, 472 F.3d 287 (5th Cir. 2006) (en banc: analysis of mitigation and retroactivity)
Franklin v. Lynaugh, 487 U.S. 164 (U.S. 1988) (mitigation evidence and future-dangerousness vehicle)
Penry v. Lynaugh, 492 U.S. 302 (U.S. 1989) (Penry I: need for meaningful consideration of mitigating evidence)
Penry v. Johnson, 532 U.S. 782 (U.S. 2001) (Penry II: clarifications on mitigating evidence and procedures)
Jones v. United States, 527 U.S. 373 (U.S. 1999) (deadlock instructions and juror misunderstanding; insulation of rule)
Romano v. Oklahoma, 512 U.S. 1 (U.S. 1994) (prohibition on improper statements about juror role; deadlock considerations)
Ex parte Briseño, 135 S.W.3d 1 (Tex. Crim. App. 2004) (Texas Briseno standard for mental retardation prongs)
Hearn v. Texas (Ex parte Hearn), 310 S.W.3d 424 (Tex. Crim. App. 2004) (Texas IQ cutoff and adaptive functioning considerations)
Skipper v. South Carolina, 476 U.S. 1 (U.S. 1986) (broader concept of mitigation evidence in some contexts)