Garcia v. QuartermanGarcia v. Quarterman
Petitioner Fernando Garcia appealed the district court‘s denial of his habeas corpus petition, and this court previously denied relief. Because recent decisions from the Fifth Circuit and the Supreme Court establish that Garcia‘s Eighth Amendment rights were violated by the trial court‘s failure to present to the sentencing jury an adequate vehicle to give meaningful mitigating effect to his history of substance abuse and an abused childhood, we grant Garcia‘s motion for rehearing, vacate the prior panel opinion, reverse the district court‘s decision, and remаnd with instructions to grant habeas relief.
The following opinion is substituted for the panel‘s prior opinion, reported at 456 F.3d 463 (5th Cir.2006).
I. BACKGROUND
With extraordinary cruelty, Garcia sexually abused and murdered a three-year-old girl in 1987.1 Garcia was convicted of murder by a Texas jury and sentenced to death on December 9, 1989. His conviction was affirmed in the state courts and certiorari was denied by the U.S. Suрreme Court. After exhausting his state court habeas remedies, Garcia filed a federal habeas petition in 2001. He argued, inter alia, that the trial court violated his Eighth Amendment rights because the “special issue” jury instructions given at the punishment phase of the trial prevented the jury from considering and giving full effect to his mitigating evidence. The district court denied Garcia‘s petition for writ of habeas corpus but granted him a Certificate of Appealability. This court denied relief in a divided ruling.
While Garcia‘s petition for rehearing was pending, in a separate case our court held en banc that the relevant inquiry in these cases is “whether there was a rea
Garcia‘s case in mitigation in the trial court rested on his background and character. A psychiatrist who examinеd Garcia for the purposes of assessing his future danger to the community testified that he did not have a stable, nurturing family and was poorly educated. He also had a long history of drug abuse, including using inhalants which can induce psychotic behavior and lead to permanent neurological damage. Indeed, the jury heard testimony from Garcia‘s neighbor who stated that she saw him sniff paint and molest a small girl while he was high.
Finally, another doctor testified about Garcia‘s background and pedophilia. He described what information Garcia relayed to him about his disturbing childhood: raised by his grandmother who exposed him to witchcraft and other odd practices; drugged by his mother so he would have sex with her and her boyfriend; forced to perform oral sex at the age of five on a friend of his brother‘s and at six on his brother; forced to perform oral sex at the age of eight on a fourteen-year-old female cousin; and sexually abused by a nun. Although he could not verify the veracity of these stories,2 the doctor described how this sort of childhood could cause pedophilia in an adult. Garcia also admitted to the doctor that he had sexually abused another young girl, who was five years old. The doctor clinically diagnosed Garcia as a dangerous pedophile who would probably molest children again if given the opportunity.
The jury received written instructions from the trial court designed to allow it to give effect to the mitigating evidence. The Charge of the Court in the sentencing phase sеt forth the Texas special issues and instructed the jury to answer “yes” or “no” to each one, applying the reasonable doubt standard. Special Issue No. 1 reads: “Was the conduct of the defendant that caused the death of the deceased committed deliberately and with the reasonable expectation that the death of the deceased or another would result?” The instructions defined “deliberately” for the jurors: “Deliberately is not linguistically equivalent to intentionally and is more than intentionally and less than premeditated; it is a conscious decision involving a thought process which embraces more than mere will to engage in conduct.” Special Issue No. 2 reads: “Is there a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society?”
You are instructed that you shall consider any evidence which, in your opinion, mitigates against the imposition of the death penalty. In making this determination you shall consider any aspects of the defendant‘s background, character or record and the facts and circumstances of the offense. If you believe from the evidence that the State has proven beyond a reasonable doubt that the answers to the Special Issues are “Yes,” but you are further persuaded by the mitigating evidence that thе defendant should not be sentenced to death in this case, or you have a reasonable doubt as to whether the death penalty should be imposed against the defendant, then you shall answer one or both of the Special Issues “No” in order to give effect to your belief that the death penalty should not be imposed in this case. Mitigating circumstances are сircumstances which do not constitute a justification or excuse for the offense in question, but which, in fairness and mercy, may be considered as extenuating or reducing the degree of moral culpability.
The jury answered “yes” to the special issues and the court sentenced Garcia to death.
II. LEGAL STANDARDS
“In reviewing a ruling on the merits of a habeas claim, the district court‘s findings of fact are reviewed for clear error; its conclusions of law, de novo.” Schaetzle v. Cockrell, 343 F.3d 440, 443 (5th Cir.2003). The Antiterrorism and Effective Death Penalty Act of 1996 supplies the proper standards for reviewing the state court ruling. See
III. DISCUSSION
The Supreme Court has dictated “that a State could not, consistent with the Eighth and Fourteenth Amendments, prevent the sentencer from considering and giving effect to evidence relevant to the defendant‘s background or character or to the circumstances of the offense that mitigate against imposing the death penalty.” Penry v. Lynaugh, 492 U.S. 302, 318, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989) (hereinafter Penry, or Penry I). Specifically, in Penry, the Supreme Court found that the Texas special issues may not have permitted the jury to give adequate effect to “the mitigating evidence of Penry‘s mental retardation and history of abuse.” 492 U.S. at 323, 109 S.Ct. 2934. In Abdul-Kabir,
A. The Nullification Instruction
To correct the special issues’ inadequacies identified by the Supreme Court in Penry I, Texas courts temporarily adopted a “nullification instruction,” like the one presented to the jurors in the instant case. Such an instruction permits the jurors to answer “no” to one of the special issues, even though the proper answer is “yes,” if they nonetheless believe that the death penalty is not warranted. In Penry II, the Supreme Court found this innovation insufficient. See Penry v. Johnson, 532 U.S. 782, 798-804, 121 S.Ct. 1910, 150 L.Ed.2d 9 (2001).
The Court identified two flaws in the special issues nullification instruction in Penry II. First, it reasoned that the instruction could be read as a gloss on the special issues, rather than as a vehicle to override them. See id. at 798, 121 S.Ct. 1910. Thus, the jury might have believed that it was still required to give “truthful answers to each special issue,” even in light of other mitigating factors. Id.3 Second, even if thе jury did properly understand the nullification instruction as allowing it to override the special issues, it was in a position where “it would have been both logically and ethically impossible for a juror to follow both sets of instructions.” Id. at 799, 121 S.Ct. 1910.
The instruction in the instant case was different from the instruction the Court held unconstitutional in Penry II. For instance, the instruction to Garcia‘s jury did not contain the language that Justice O‘Connor worried could “be understood as telling the jurors to take Penry‘s mitigating evidence into account in determining their truthful answers to each special issue.” Id. at 798, 121 S.Ct. 1910. Rather, the jury instructions here state clearly that, even “[i]f you believe ... that the answers to the Special Issues are ‘Yes,‘” you “shall answer one or both of the Special Issues ‘No’ in order to give effect to your belief that the death penalty should not be imposed in this case” (emphasis added).
However, the nullification instruction here still has the second flaw identified in Penry II—it requires jurors to answer a special issue untruthfully in order to give effect to the mitigating evidence. See id. at 802, 121 S.Ct. 1910. Although “[a] clearly drafted catchall instruction on mitigating evidence ... might have complied with Penry I,” in this case, “jurors ... [still] hаd to answer the special issues dishonestly in order to give effect to ... mitigating evidence.” Id. at 802-03, 121 S.Ct. 1910. Thus, the trial court‘s additional “clarification” provided no real help.” Id. at 802, 121 S.Ct. 1910.4
Thus, in order for us to find that the jury had the opportunity to give meaningful effect to Garcia‘s mitigating evidence, we must determine that the two special issues, standing alone, are constitutionally sufficient.
B. Garcia‘s Mitigating Evidence
For the sake of clarity, we divide the mitigating evidence presented by Garcia at the sentencing hearing into three categories: (1) evidence of Garcia‘s “good character“; (2) evidence of substance abuse; and (3) evidence of neglect and abuse during childhood.5
For evidence of good character, the jury could have considered Garсia‘s claim that he was a born-again Christian and the fact that during previous incarcerations he had not been responsible for any serious disciplinary violations. The law on this issue is clear. Abdul-Kabir did not alter the Supreme Court‘s ruling in Franklin v. Lynaugh that evidence of good character can be given sufficient mitigating effect by the second special issue. See Franklin v. Lynaugh, 487 U.S. 164, 177-78, 108 S.Ct. 2320, 101 L.Ed.2d 155 (1988); accord Graham v. Collins, 506 U.S. 461, 466, 113 S.Ct. 892, 122 L.Ed.2d 260 (1993).
The same cannot be said for Garcia‘s evidence of substance abuse in light of Abdul-Kabir and Brewer. It is possible Garcia‘s substance abuse could have been given some mitigating effect under the first special issue. Garcia claimed that he had a long history of substance abuse and often committed his sex crimes when he was high. It appears that Garcia was in a narcotic-induced, altered state when he murdered his victim. The jury could have found that thе drugs prevented Garcia from having the deliberative state necessary for it to answer “yes” to the first special issue. Nevertheless, Garcia‘s substance abuse might also have had “meaningful mitigating relevance beyond its tendency to disprove that [Garcia] acted deliberately.” Coble v. Quarterman, 496 F.3d 430, 447 (5th Cir.2007).
Likewise, the possibility that Garcia‘s substance abuse might function as a “two-edged sword” in the minds оf the jury renders the special issues insufficient. See Brewer, 127 S.Ct. at 1712 n. 5, 1714. If the jury believed Garcia could stem his substance abuse, it could have found him to be less of a future danger under the second special issue. On the other hand, a jury convinced that Garcia‘s habitual substance abuse made him all the more dangerous would be left without an alternate vehicle for considering whether it nonethеless made him less culpable. See Coble, 496 F.3d at 447-48.
The same is true of Garcia‘s evidence of his abused childhood. The Supreme Court has conclusively stated that childhood abuse cannot be given meaningful mitigat
Further, the Penry I Court treated Penry‘s history of abuse as something with independent mitigating effect:
Penry argues that his mitigating evidence of mental retardation and childhood abuse has relevance to his moral culpability beyond the scope of the special issues, and that the jury was unable to express its “reasoned moral response” to that evidence in determining whether death was the appropriate punishment. We agree. Thus, we reject the State‘s contrary argument that the jury was able to consider and give effect to all of Penry‘s mitigаting evidence in answering the special issues without any jury instructions on mitigating evidence.
492 U.S. at 322, 109 S.Ct. 2934 (emphasis added). At no point in the opinion does the Court remark that it is only because Penry is mentally retarded that his past history of abuse was not given sufficient mitigating effect under the special issues. Abdul-Kabir confirms this as the “clearly established” law enunciated by Penry I.
In light of Penry I and II, Abdul-Kabir and Brewer, the state court‘s ruling that the speciаl issues in this case were constitutionally sufficient was contrary to the Supreme Court‘s precedent or, alternatively, an unreasonable application of clearly established law.
The original majority opinion in this case determined that Garcia could not avail himself of Penry-related arguments concerning his background because he did not argue to the jury for mercy and, in fact, foreswore seeking “mercy.” In light of the conclusiveness with which the Court has now rejected limitations on the Penry doctrine and has declared as “clearly established law” only those limitations embodied in the facts of specific cases,6 we must retract our earlier view. A juror who credited Garcia‘s evidence of an abused background and believed that his childhood, or his substance abuse, made him less culpable could not, under Abdul-Kabir, have given effective voice to this conclusion through the special issues in this case.
That this instructional error mandates reversal of the death sentence follows from Abdul-Kabir and our en banc decision in Nelson v. Quarterman, 472 F.3d 287 (5th Cir.2006). Neither of those decisions, however, alters the basic rule that for “virtually all” other collateral challenges tо state court convictions the appropriate standard of review is the “substantial and injurious effect” harmless error test found
IV. CONCLUSION
For these reasons, the district court‘s judgment denying habeas relief is REVERSED, and the case is REMANDED with instructions to grant the writ and require a resentencing of Garcia within a reasonable time to be determined by the district court.