Carl Henry BLUE, Petitioner-Appellant, v. Rick THALER, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellee.
No. 10-70025.
United States Court of Appeals, Fifth Circuit.
Dec. 22, 2011.
647 F.3d 652
III.
For the reasons herein given, the judgment of the district court is
AFFIRMED.
John Edward Wright, Law Office of John E. Wright, P.C., Huntsville, TX, Donald Vernay (argued), Rio Rancho, NM, for Petitioner-Appellant.
Fredericka Searle Sargent, Asst. Atty. Gen. (argued), Postconviction Lit. Div., Office of the Attorney General, Austin, TX, for Respondent-Appellee.
Before HIGGINBOTHAM, SMITH and HAYNES, Circuit Judges.
In a habeas proceeding under
I.
In 1994 a Texas jury found Carl Henry Blue guilty of capital murder, and Blue received a death sentence. The Texas Court of Criminal Appeals (“the CCA“) affirmed Blue‘s conviction on direct appeal in 1996 and denied his first state habeas application in 1999. The following year, the federal district court vacated Blue‘s death sentence on the ground that the State‘s expert witness had testified during the punishment-phase trial that Blue was more likely to be a future danger to society because he is black. A second punish
II.
Blue seeks to appeal the district court‘s determinations that he is not entitled to habeas relief on (1) his claim under Atkins v. Virginia that his mental retardation bars his execution; and (2) various claims that the jury instructions at his punishment-phase trial violated the Eighth Amendment. Before a
Treating the Atkins-related issues and the jury-instruction issues in turn, we hold that the district court did not abuse its discretion by declining to hold an evidentiary hearing nor err by using IQ scores to assess Blue‘s general intellectual functioning; that the proper focus now is upon the CCA‘s determination of Blue‘s general intellectual functioning, a determination entitled to AEDPA deference; and that, in any event, any error would be harmless because Blue does not challenge the district court‘s determinations that he has failed to satisfy the other two elements of the test for mental retardation. We also reject the three remaining challenges as foreclosed by circuit precedent: Blue‘s challenge to the “moral blameworthiness” language in Texas‘s capital-sentencing jury instructions; Blue‘s challenge to the failure to assign a burden of proof on the mitigation special issue; and his challenge to the “10-12” Rule.
III.
Blue presented his Atkins claim to the CCA in his third state habeas application.6 Holding that Blue had “failed to meet his burden to present sufficient specific facts from which, even if true, we could reason
The State unsuccessfully argued to the district court that Blue had procedurally defaulted his Atkins claim,9 and did not re-urge procedural default in its response to Blue‘s motion for a COA. In short, the state accepts that the CCA decided the merits of Blue‘s Atkins claim.
Whether a habeas petitioner is mentally retarded is a question of fact.10 Under
Section 2254(d)(2) commands substantial deference to the factual determinations made by state courts.15 It is not enough to show that a state court‘s decision was incorrect or erroneous. A petitioner must show that the decision was
A.
Blue argues that the district court‘s refusal to hold an evidentiary hearing was an abuse of discretion because the conflicting expert testimony as to whether he is retarded created a genuine issue of fact as to the merits of his Atkins claim.19 “In cases where an applicant for federal habeas relief is not barred from obtaining an evidentiary hearing by
This Court has long held that a district court‘s refusal to hold an evidentiary hearing in a
Pinholster thus imposes a new limitation on the availability of evidentiary hearings in habeas cases, a limitation not fully captured by our two-part standard. In the broad run of cases, even when the first of the two preconditions to an evidentiary hearing is satisfied,
That is not to say that there is no basis on which the district court could have made that determination in this case, because Atkins claims fall outside that broad run of cases in some circumstances. “[W]hen a petitioner makes a prima facie showing of mental retardation, a state court‘s failure to provide him with an opportunity to develop his claim deprives the state court decision of the deference ordinarily due under the AEDPA.”29 This rule
Texas closed its gate to Blue, concluding that he failed to present a claim with prima facie validity.34 The propriety of the district court‘s decision not to grant further access to the federal decisional processes thus turns entirely on whether Blue‘s third state habeas application made a prima facie showing of mental retardation.
The evidence that Blue presented to the CCA, even when taken as true, would not support a finding that he is mentally retarded. Atkins left it to the states to formulate and adopt their own definitions of mental retardation.35 In Ex parte Briseño, the CCA adopted the definition of mental retardation promulgated by the former American Association on Mental Retardation (“AAMR“).36 Under Texas law, “mental retardation is a disability characterized by: (1) significantly subaverage general intellectual functioning,” defined as an IQ of about 70 or below; “(2) accompanied by related limitations in
Blue failed to tender evidence to the CCA that, if true, establishes that he exhibits significantly subaverage general intellectual functioning. The CCA follows the former AAMR in defining “significantly subaverage intellectual functioning” as “an IQ of about 70 or below.”39 IQ is measured using standardized testing instruments such as the Wechsler Adult Intelligence Scale. Such instruments “have a measurement error of approximately 5 points in assessing IQ,” with the result that “any score could actually represent a score that is five points higher or five points lower than the actual IQ.”40 Thus, a person whose true Wechsler IQ score is 70 might obtain a score as high as 75 or as low as 65.41 While the CCA has declined
Hearn establishes that, under Texas law, the lack of a full-scale IQ score of 75 or lower is fatal to an Atkins claim.44 This Court has previously held that Atkins gives the states discretion in how they define and determine the existence of mental retardation.45 The CCA‘s use of 75 as its upper-limit IQ-score cutoff point tracks the DSM-IV‘s diagnostic criteria46 and finds support in Atkins itself.47 By acknowledging that a petitioner whose IQ score is just above 70 could still make a showing of mental retardation, the Hearn standard also takes heed of prior admonitions from both this Court and the CCA that IQ scores should be interpreted with awareness of the margin of error in the statistical analysis.48
Blue did not present the CCA with evidence that he had attained a full-scale IQ score of 75 or lower. The only evidence of IQ that Blue presented in his state-court proceeding was a transcript of a portion of the testimony of Dr. Windell Dickerson. Dr. Dickerson testified at Blue‘s punishment-phase trial that he had administered to Blue several short-form versions of the verbal portions of the Wechsler test and concluded that Blue “has an actual IQ in the range of 75 to 80.” This evidence is insufficient to support Blue‘s Atkins claim. While a full-scale IQ score of 75 might correspond to an actual IQ of 70,49 Dr. Dickerson did not testify that Blue received a score of 75 on a full-scale IQ test. Rather, Dr. Dickerson concluded from Blue‘s performance on short-form versions of the test that Blue‘s actual IQ was be
Nor did any of the other evidence that Blue presented to the CCA support a finding that he is mentally retarded or that he exhibits significantly subaverage general intellectual functioning. Blue offered into evidence some of his school records, affidavits from friends and family members, and a sworn declaration from Dr. James R. Patton. Dr. Patton prepared his declaration after reviewing all of the other record materials. The most relevant portions of his declaration state:
I want to note at the outset that there is a paucity of information presented that makes it impossible to conclude whether Mr. Blue is mentally retarded. There is, however, enough information that is consistent with Mental Retardation and that would justify a further inquiry, including full scale intellectual testing and a [sic] in depth investigation into Mr. Blue‘s background to determine the existence of mental retardation. In other words, Mr. Blue might well be mentally retarded and nothing that I have seen is inconsistent with that determination ....
Mr. Blue‘s school records indicate a number of troubling areas. There is a consistent inability to perform academically .... Clearly, these deficits in learning ability may well be attributable to causes other than mental retardation; for example, learning disabilities and/or an impoverished family background may well have played a role, even a determinative one. Mental Retardation, however, cannot be ruled out and additional assessment methods should be authorized and employed to determine this ....
A review of the declarations of those who knew Mr. Blue best also support, but do not establish, a diagnosis of mental retardation and indicate a need for a more comprehensive assessment .... Most of the reports about Mr. Blue note his gullibility, a trait shared by individuals who are mentally retarded .... An inability to perform daily self-help functions is also an adaptive deficit common or frequently found among persons who are mentally retarded .... The lack of adaptive skills noted by these reporters is common to the patterns of behavior associated with persons who have mental retardation ....
All of these deficits suggest limitations in adaptive functioning and support a claim of mental retardation. While, as I have stated before, there are other possible explanations for these problems, mental retardation certainly cannot be ruled out and indeed, is strongly suggested by this pattern of adaptive deficits. Viewed in isolation, none of these factors would be dispositive; taken as an overall pattern, mental retardation is strongly suspected. Only a full and thorough assessment, however, can answer that question.
Dr. Patton‘s affidavit is tentative and inconclusive at best. It also focuses exclusively on limitations in adaptive functioning, the second of Briseño‘s three criteria for diagnosing mental retardation. Nothing in the affidavit would support a conclusion that the first Briseño criterion, significantly subaverage general intellectual functioning, has been satisfied.
Finally, the new IQ evidence that Blue presented in the proceedings below also does not support a finding of significantly subaverage general intellectual functioning. Even if, despite Pinholster,53 we would consider it, Blue obtained two full-scale IQ scores of 76 and 77,54 both of which are above the rough ceiling of 75 established by Hearn. Blue advanced three theories to support his argument that his IQ score should be adjusted downward into the range that would qualify him for a diagnosis of mental retardation, but the district court rejected each of these theories by making findings of fact that are well supported by the record.55
B.
Blue also challenges the district court‘s dismissal of his Atkins claim by asserting that the court employed an improper “‘bright-line’ standard for assessing intellectual disability.”56 Blue offers scant argumentative support for this assertion. He does no more than point out that “the District Court ... specifically implied that without at least one IQ score below 70 a Petitioner could not obtain relief under Atkins” before “respectfully submit[ting] that the fundamental unfairness involved in this type of gatekeeping by the District Court cast doubt on the Court‘s entire opinion.”57
This argument fails for three reasons. First, the district court did not adopt an improper bright-line, IQ-based test. The court‘s statement that an IQ score of 75 is “the base score that may qualify for a diagnosis of mental retardation”58 reflects the standard that the CCA announced in Hearn. The district court also undertook an exhaustive survey of this Court‘s precedent and correctly concluded that “the Fifth Circuit has only granted relief on Atkins claims where an inmate presents at least one base score below 70” and “has denied relief when an inmate has IQ scores both under and over 70 and when all his scores fall above 70.”59 After rejecting Blue‘s arguments that his full-scale scores of 76 and 77 should be scaled downward into the sub-75 range, the district court concluded that “Blue has not produced an IQ score within the parameters serving as a precursor to a diagnosis of mental retardation.”60 The court‘s treatment of the IQ issue was consistent with controlling precedent from this Court and the CCA.
Second, an error by the district court in its application of the
Finally, even if the district court had erred in its assessment of Blue‘s
IV.
Blue raises three challenges to the constitutionality of Texas‘s capital sentencing scheme, all of which focus on the manner in which the jury was instructed at his second punishment-phase trial. First, he contends that the jury instructions did not provide the jury with an adequate vehicle to give full consideration and effect to his mitigating evidence, as required by Penry v. Lynaugh and progeny. Second, he challenges the failure to assign a burden of proof on the mitigation special issue. Third, he argues that the “10-12” Rule affirmatively misleads the jury. Each of these challenges is foreclosed by Circuit precedent.
Here are the pertinent portions of the state district court‘s instructions to the jury in Blue‘s punishment-phase trial:
In determining your answers to the questions or special issues submitted to you, you shall consider all the evidence submitted to you in this trial. You shall consider all evidence submitted to you during the whole trial as to the defendant‘s background or character or the circumstances of the offense that militates for or mitigates against the imposition of the death penalty.
The burden of proof as to Special Issue No. 1 rests upon the State, and it must be proved beyond a reasonable doubt that the answer to Special Issue No. 1 should be “Yes.”
You are instructed that you may not answer Special Issue No. 1 “Yes” unless
all jurors agree to such answer. Further, you may not answer this special issue “No” unless ten or more jurors agree .... SPECIAL ISSUE NO. 1, with forms for answers, is as follows: Is there a probability that the defendant, Carl Henry Blue, would commit criminal acts of violence that would constitute a continuing threat to society?
ANSWER: We the jury unanimously find and determine beyond a reasonable doubt that the answer to Special Issue No. 1 is “Yes,” with a signature space for the Presiding Juror, or
ANSWER: We, the jury, because at least ten jurors have reasonable doubt as to the probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society, determine that the answer to Special Issue No. 1 is “No,” with a signature space for the juror.
In the event the jury is unable to agree upon an answer to Special Issue No. 1 under the conditions and instructions outlined above, the juror will not sign either form of answer to the special issue. The jurors shall not discuss or consider the effect of the failure of the jury to agree on the answer to the special issue.
You are further instructed that if the jury makes an affirmative finding to Special Issue No. 1—that is, an answer of “Yes“—then the jury shall answer Special Issue No. 2 below. You will answer this Special Issue No. 2 “Yes” or “No.”
You may not answer the issue “No” unless all jurors agree to such answer, and you may not answer such issue “Yes” unless ten or more jurors agree to such answer ....
You are instructed that the term “mitigating evidence,” as used herein, means evidence that a juror might regard as reducing the defendant‘s moral blameworthiness.
The special issue with forms for answer is as follows:
SPECIAL ISSUE NO. 2: Taking into consideration all of the evidence, including the circumstances of the offense, the defendant‘s character and background, and the personal moral culpability of the defendant, do you find that there is a sufficient mitigating circumstance or circumstances to warrant that a sentence of life imprisonment rather than a death sentence be imposed? ...
In the event the jury is unable to agree to an answer to this Special Issue under the conditions and instructions given herein, the Presiding Juror will not sign either form of answer to the Special Issue. The jurors shall not discuss or consider the effect of the failure of the jury to agree on the answer to the special issue.
A.
First, Blue argues that the instructions given to the jury at his second punishment-phase trial violated his Eighth Amendment rights by providing the jury with an inadequate vehicle for giving full consideration and effect to his mitigating evidence. Blue exhausted this claim by raising it as point of error number thirty in his direct appeal from the re-sentencing.67 The CCA rejected this claim on its merits,68 so Blue is entitled to federal habeas relief only if he can show that the CCA‘s adjudication of the claim “resulted
“[T]he Eighth Amendment requires that a capital sentencing jury‘s discretion be guided and channeled by requiring examination of specific factors that argue in favor of or against imposition of the death penalty in order to eliminate arbitrariness and capriciousness.”71 As this Court explained in its en banc decision in Nelson v. Quarterman, the decisions of the Supreme Court clearly establish that the instructions given to a capital jury are unconstitutional if there is:
a reasonable likelihood that the jury would interpret the Texas special issues in a manner that precluded it from fully considering and giving full effect to all of the defendant‘s mitigating evidence. This “full-effect” standard requires that a juror be able to express his reasoned moral response to evidence that has mitigating relevance beyond the scope of the special issues; i.e., a juror cannot be precluded from electing a sentence less than death if he believes that the mitigating evidence offered makes the defendant less morally culpable for the crime ....72
This standard became clearly established no later than 1989,73 well before Blue‘s judgment of conviction became final in 2003.
A brief summary of the development in the law in this area helps put Blue‘s argument in context.74 For many years Texas required capital sentencing juries to answer three special issues: the deliberateness special issue,75 the future-dangerousness special issue,76 and the inadequate-provocation special issue.77 But in 1989,
The Texas legislature responded to Penry I in 1991 by enacting a new special-issues scheme. In all cases in which a defendant is on trial for a capital offense committed on or after September 1, 1991, the jury must answer two79 special issues: the same future-dangerousness issue from the old sentencing scheme, which is now codified at
Although this new special-issues scheme has now been on the books for nearly twenty years, it has yet to make its way to the Supreme Court. Because of the slow pace at which capital cases proceed through the courts, the rather substantial body of recent Supreme Court precedent sustaining constitutional challenges to Texas‘s use of the special issues has little bearing on this case. Those decisions considered either the described pre-1991 scheme or the pre-1991 scheme in conjunction with the infamous “nullification” instruction. In fact, the Supreme Court commented favorably on the
Blue nonetheless contends that there is a reasonable likelihood that the jurors in his case interpreted the new special issues as prohibiting them from giving full consideration and effect to all of the mitigating evidence that he presented during his punishment-phase trial.81 Blue acknowledges that “the language in the Texas mitigation issue itself,” i.e.,
This Court considered and rejected this very line of argument in Beazley v. Johnson86, where it held that the capital sentencing scheme presently codified in
Beazley forecloses Blue‘s claim for relief in two ways. First, its conclusion that the new special-issue scheme is constitutional is very strong evidence that it was reasonable for the CCA to reach the same conclusion.92 Second, Beazley also held, on facts materially indistinguishable from those presented here, that the petitioner was not
Blue advances several counter-arguments, but none can overcome the binding authority of Beazley. First, he contends that Beazley is no longer good law in light of the later-in-time en banc decision in Nelson.95 However, the petitioner in Nelson was sentenced under the pre-1991 special issues scheme, which did not include the mitigation special issue.96 Nelson holds only that the future-dangerousness special issue does not, by itself, enable the jury to give full effect to certain kinds of mitigating evidence, including mental illness.97 Nelson did not overturn Beazley‘s holding that the mitigation special issue allows the jury to give full effect to any and all forms of mitigating evidence.98
Next, Blue argues that the Supreme Court‘s decision in Skipper v. South Carolina99 establishes that mitigation evidence extends beyond evidence that tends to reduce the defendant‘s moral culpability or blameworthiness.100 In actuality, Skipper holds that a defendant must be allowed to put on evidence of his good conduct in prison as mitigation evidence at a punishment-phase trial.101 A few years later, in Franklin v. Lynaugh, the Court held that when a Texas capital defendant puts on such evidence, the future-dangerousness special issue gives the jury an adequate vehicle for considering it.102 Thus, it is beyond dispute that Blue‘s jury was instructed in a manner that enabled them to consider the mitigating effect of his good conduct in prison. And nothing in Skipper lends any support to Blue‘s broader contention that it is unconstitutional to define mitigating evidence as evidence that reduces moral blameworthiness.
Third, Blue points to the fact that in some capital trials Texas courts have chosen to supplement the statutorily mandated jury instructions and offer broader definitions of mitigating evidence.103 Be that as it may, Blue has not identified any
In sum, Blue cannot show that the special issues did not allow the jury to give full consideration and effect to evidence of his good conduct in prison, mental-health issues, and low IQ. Franklin v. Lynaugh holds that the special-dangerousness issue allows the jury to consider good conduct in prison, and Beazley holds that the mitigation special-issue enables consideration of the evidence of mental illness and low IQ. Jurists of reason would not debate the district court‘s decision to dismiss Blue‘s Penry challenge. Accordingly, we deny Blue‘s motion for a COA on this claim.
B.
Blue also contends that the failure to assign either party the burden of proof on the mitigation special issue violates the Due Process Clause. Specifically, Blue argues that “the failure to assign a burden of proof ... fails to guide the discretion of the jury in a way that minimizes bias, arbitrariness and caprice in capital sentencing.”105 Blue exhausted this claim by raising it as point of error number thirty-four in his direct appeal from the re-sentencing, and the CCA rejected it on its merits.106 As Blue concedes,107 this Court has held on several occasions that “[n]o Supreme Court or Circuit precedent constitutionally requires that Texas‘s mitigation special issue be assigned a burden of proof.”108 The absence of controlling Supreme Court precedent is fatal to Blue‘s claim under
On a closely related but conceptually distinct note, Blue briefly argues that the failure to assign a burden of proof runs afoul of the Sixth Amendment‘s requirement that each element of a criminal offense must be proven beyond a reasonable doubt.109 This argument “ignores the distinction between facts in aggravation of punishment and facts in mitigation.”110
Because both of Blue‘s arguments with respect to the burden of proof on the mitigation special issue are foreclosed by Fifth Circuit precedent, the correctness of the district court‘s decision to reject them is not subject to debate among jurists of reason.112 Therefore, we conclude that Blue is not entitled to a COA on this issue.
C.
Finally, Blue contends that Texas‘s system of instructing punishment-phase jurors on the consequences of a failure to agree on a sentence violates the Eighth Amendment.
In Romano, the Supreme Court explained that remarks by a prosecutor or the court affirmatively mislead the jury regarding its responsibility for the sentencing decision if “the remarks ... improperly describe[] the role assigned to the jury by local law.”118 However, the Supreme Court held in Jones v. United States that “a failure to instruct the jury as to the consequences of deadlock” in no way affirmatively misleads the jury about
To the extent that Blue‘s challenge to the 10-12 Rule urges us to adopt a new rule of constitutional criminal procedure, it also is barred under Teague v. Lane.122 New rules of constitutional criminal procedure cannot be announced on federal habeas review unless one of two narrow exceptions applies.123 “[A] case announces a new rule when it breaks new ground or imposes a new obligation on the States or the Federal Government,” which is to say, when its “result was not dictated by precedent existing at the time the defendant‘s conviction became final.”124 Blue maintains that Teague is not implicated because he seeks to enforce the rules of Romano,125 Penry I,126 Jurek v. Texas,127 and Gregg v. Georgia.128 However, in Webb v. Collins, this Court held that a habeas petitioner‘s Eighth Amendment challenge to “the jury instructions given pursuant to
V.
The motion for a certificate of appealability is DENIED.
Although the panel did not reach the merits of the defense, Chief Judge Lottinger, in a concurring opinion, concluded that because of Louisiana‘s public policy against the covert financing of political campaigns, and under the previously discussed Louisiana Civil Code articles, the entire transaction—including the promissory note that evidenced the obligation—was an absolute nullity, void from its inception, and unenforceable. Id. at 138-39 (Lottinger, C.J., concurring).