*2 DENNIS, Cirсuit Judges. stead, assisted Garibay, Jesse brother-in-law, Hernandez took them to a HIGGINBOTHAM, PATRICK E. remote area where he them and robbed Circuit Judge: shot range, them close execution style. juryA 207th survived, Judicial District All but Cervan and two of them Texas, County, Sep- Comal against testified Hernandez at trial.1 The 25, 1985, tember convicted Rodolfo Baiza of Criminal affirmed Hernandez of capital murder of Victor on direct review and the Supreme Court State, 1. See v. (Tex.Crim.App.1990). 805 S.W.2d Hernandez 410-11 Taylor,5 the In Williams In 1991 certiorari.2 denied 2254(d)(1) follows: relief, explained and Court for habeas petition state filed a proposed filed master special 1993 a clause, a to” federal “contrary Under law. conclusions of fact findings *3 writ if may grant the court habeas the master’s adopted court trial The state oppo- aat conclusion arrives court state of all denial recommended proposals aon by this Court to that reached site Ap- of Criminal Court The relief. state court if the or of law question fact findings of determined peals than this differently a case decides denied the record and supported were materially indistin- on a has set Court re- declined Court Supreme The relief. the “unreason- facts. Under guishable petition federal a second time.3 view clause, a federal habeas application” able later the years one-half Two and followed. if the state the writ grant may court certifi- granted relief denied district le- governing correct court identifies now issues the two on appealability cate of decisions from this Court’s gal principle us. before principle unreasonably applies but case. prisoner’s of the the facts to II peti- federal filed his Hernandez Since Ill the effective relief after habeas tion for AEDPA, is con- petition date of counsel filed trial Hernandez’s Before most immediate act. Its by that trolled Pfeuffer, the Judge R.T. requesting motion authority of federal limits provision4 “qualified appoint to judge, state trial follows: as proceedings courts habeas County expense expert at disinterested habeas (d) for a writ of An application of the De- a mental examination conduct custody person aof corpus on behalf to the Defendant’s regard with fendant of a State judgment trial, pursuant file a written to stand competency respect with granted shall not days court within 30 this Court report in adjudicated on was any claim that Examination, re- to testify Order unless proceеdings court in State merits hearing upon trial or garding same claim— adjudication fur- that this ... [and] such issue (1) copies of said in a decision that resulted nish defense to, an unreason- available.” or involved it becomes contrary soon report of, money to “en- clearly established requested also application The motion able law, expert of to select an as determined Federal able the Defendant States; the Defendant of the United to examine choice his own to stand trial” competency to his or relative be notified Hernandez’s counsel and “that in a decision resulted of the examination place the time determina- unreasonable on an based attend, alternatively, allowed to and he be of the evi- light facts tion of the he taped and be video the examination State presented dence tape.” Signifi- copy be furnished proceeding. (2000). 2254(d) 960, Texas, § 4. 28 U.S.C. id.; U.S. 500 v. 2. See (1991). S.Ct. 114 L.Ed.2d726 111 412-13, 5. 529 U.S. Texas, 513 U.S. 3. Hernandez (2000). L.Ed.2d 389 (1995). L.Ed.2d cantly, the requested motion also that the danger society. Sparks expressed separate examiner file reports regarding the opinion that such conduct reflected an the examiner’s of whether Hernan- anti-social personality person and that a mentally dez was ill or retarded and with this history likely continue to required whether he treatment. The lat- be a danger society. The difficulties request ter plainly beyond questions looks began when defense counsel seized the competency to stand trial to the sen- opportunity develop on cross-examina- tencing phase of the trial. The motion tion a mitigation theory that rested on an requested also testify the examiner old diagnosis of chronic schizophrenia at a hearing issues. made of Hernandez during an pris- earlier *4 stay robbery. for presented He prison Judge granted Pfeuffer the motion in records to Dr. Sparks reflecting the diag- part, appointing Sparks Dr. in- John with nosis, eliciting testimony periods about struction to competency examine for remission and its responsiveness to drugs sanity stand trial and for at the time of the and therapy. Dr. Sparks acknowledged offense. He denied the request ap- for the differences in the illnesses pointment doctor, but main- “independent” of an tained that nonetheless his earlier request that counsel answers be notified and be response allowed to present, hypothetical “appear[ as well ] as the alter- to be closest to a request description native for videotaping. that is labeled the anti-social personalty.” He argued Dr. Sparks conducted examination. that such an person afflicted experi- can gave He required Hernandez the warnings periods ence of remission and with proper that his statements could be against used treatment a productive live life. trial, him at except, apparently, specific any caution that statements could be used On redirect the State demonstrated that sentencing phase of a trial. Dr. Sparks Dr. also had benefit of the Sparks gave counsel, no to defense notice examination of ordered by Hernandez and counsel was present not during the court at request; and that in month, examination. following The in Sep- concluding that Hernandez was competent tember, judge the trial trial, convened a compe- to stand Dr. Sparks had decided that tency hearing before at which both Hernandez had an anti-social personality. sides offered evidence and Dr. Sparks The tes- Texas Court of Criminal de- regarding tified competency. jury- The exchange scribed this at trial as follows: found that Hernandez was competent to [T]he State elicited testimony redirect stand trial. Defense made fur- no from Dr. Sparks concerning appellant’s ther requests for psychiatric assistance competency in response evaluation and did not attempt an insanity defense at appellant’s psychiatric introduction trial. evidence on By cross-examination. in- troducing appellant’s psychiatric TDC
Dr. Sparks made appearance no until records and soliciting Sparks’ Dr. opin- the punishment phase trial, when records, ion concerning appellant those the State called him as a The witness. “opened the door” to the State’s use of State’s direct examination made no men- the results of exam competency for tion by Dr. Sparks. examination purposes.... rebuttal Rather, proceeded by State asking a hypothetical narrative question as a By basis creating impression that appel- Sparks’ for Dr. opinion as to whether a lant may have suffering para- been person with a history similar abe noid schizophrenia, appellant paved the record reading this with agree We impres- that to rebut for the State
way least, it is both theAt court. testimony tending by the Texas psychiatric sion interpretation objectively suf- reasonable instead an aрpellant to show reasonable trial and personality relevant events anti-social an fering from of the decision application disorder.6 Kentucky.8 in Buchanan Dr. concluded court also Texas The regard- express did is that Sparks here contention primary The dangerousness, ing testimony Sparks’ Dr. the introduction instructed specifically trial court before Hernandez he had examined do so. he could not prosecutor Hernan hearing denied competency explained: the Sixth counsel secured right dez’s testimony began elicit the State When Amendment.9 ex- competency Dr. concerning Sparks’ the examination initiated object- immediately amination, appellant of mental and other competency hearing outside subsequent ed. At a full and had his counsel through illness ruled the trial court jury’s presence, Sparks to cross-examine *5 opportunity to his testify as could witness that the trial. hearing before competency whether not as to findings, but medical did that Hernandez suggestion There is no likely commit would appellant with to consult opportunity full not have a a constitute would violence that acts of the examina- scope of counsel about Dr. essence of society. The danger to demon- tion, regard to its use to with both was jury testimony before the ] Sparks’f possible develop and to competency strate personality of anti-social diagnosis his teach- As Buchanan evidence. mitigating disorder, along with a comment if he notice that es, on counsel was defense prison appellant’s informed of he been play, in to mental status attempted put records, diagnosis psychiatric in the examination upon draw might State paranoid finding primary of have been rebuttal. along with in remission schizophrenia trial on di- sentencing of phase At the per- of an anti-social secondary finding attorney, by the State’s rect examination while testimony, This sonality disorder. based opinion an expressed Sparks Dr. danger- of future to the relevant issue upon and not hypothetical question upon of an ousness, not direct assertion was lodged The defense prior examination. dan- concerning future expert the hypothetical, to the use of objection no gerousness.7 er, certainly that if ... State, on notice was 805 S.W.2d v. 6. Hernandez banc). de- (en status’ put a 'mental on (Tex.Crim.App.1990) he intended anticipate the use ... he would have fense n. 3. 7. Id. at 412 prosecution by the psychоlogical evidence rebuttal.”) in 424-25, 8. 483 U.S. (1987) (stating the focus of L.Ed.2d also suggestions these events 9.There are the use is the Sixth Amendment right to not incriminate violated Hernandez’s proper "the report and that the doctor's Amendment, although consulta under Fifth [is] this himself amendment concern counsel, made petitioner separate undoubt has not been contention tion which effective, consultation, contention, although to be edly Such Regardless, had. neither us. being doctrines, informed based on counsel's must be survive resting upon distinct can proceed scope nature about analysis oí Buchanan. Smith, howev- ing .... Given our decision recitation, from an error in the apart fense present counsel to be when Dr. promptly only which corrected. The Sparks conducted the ordered examination presentation from that deviation came on of Hernandez. Disclosure of the court- Sparks’ redirect examination where Dr. ordered examination came here only in prior examination was disclosed in a shor- response to defense counsel’s cross-exami- ing Sparks’ opinions regarding opened nation which door its re- play relative schizophrenia, remission here, ceipt. As applied this trial court and when treated drugs, compared as ruling was no application mechanical diagnosis of anti-social disorder. familiar “you opened Rather, the door.” find no violation the Fifth We or Sixth practical was a necessity to avoid the un- Amendment in this circumstance. fairness of tying prosecutor’s hands These events differ from those of White while leaving defense counsel free to at- Estelle,10 upon Hernandez’s reliance tack Dr. Sparks’ opinions lacking that, here, it misplaced. is It is true informed basis. examiner of White testified the sentenc-
ing phase response hypothetical ques- IV tions, but importance little else of is simi- lar. Defense objected counsel White Hernandez contends that the jury testimony, urging the trial court that could not give effect to evidence that he tailoring hypothetical was calcu- subjected to sustained child abuse and lated inform the of the earlier chronic mental argument disease. The examination ordered on a motion that the jury could not effect to these State, not the defendant.11 federal mitigating circumstances under the ques *6 trial habeas court later found that tions asked them as explained Penry v. examination “reasonably indicated that the Lynaugh.14, As by demonstrated defense psychiatric prognosis of White’s future counsel in closing argument, the evidence dangerousness influenced by and de- of chronic schizophrenia could be consid from the rived pretrial psy- court-ordered by ered jury answering question chiatric examinations.”12 This was not the of dangerousness, argument hypothetical case with the put to. carefully laid the support for Indeed, Estelle, Sparks. sensitive to in his Sparks. cross-examination of Dr. Judge Pfeuffer here prose- instructed the treatment, With medication and remission cutor that he was to not ask Dr. Sparks can be sustained. “whether likely [Hernandez] commit future acts of violence that We have repeatedly would consti- held that evidence danger alone, tute a for the of society,”13 reason child abuse unlinked to the of- Judge Pfeuffer fense, had not allowed de- is not mitigating.15 (5th Cir.1983). 10. 720 F.2d crime, 415 demonstrating any without link to the does not “constitutionally constitute relevant 11. See id. at 417 & n. 1. evidence”); Collins, mitigating Madden v. 18 304, (5th Cir.1994) (evidence F.3d 308 of Id. at 417. 12. troubled constitutionally childhood not rele- Hernandez, 805 S.W.2d at 412 n. 3. 13. mitigating vant evidence when not linked in crime); Collins, any way to the v. Barnard 302, 2934, 14. 492 U.S. 109 S.Ct. 106 L.Ed.2d 634, (5th Cir.1992) (reject- 958 F.2d 638-39 (1989). 256 ing Penry claim where crime not attributable proffered to the of troubled Scott, evidence child- See Davis v. F.3d 51 461-62 hood). (5th 1995) (evidence abuse, alone, Cir. of child 350 conflated its unconstitutionally else ever or
V Fifth and Sixth of the defendant’s analysis in this case argument heard have We clearly contrary to the rights, Amendment of opinions carefully considered by as determined Federal law established decided previously have courts States. United Supreme Court opin- a detailed including questions, these below, find no court ion district mistakenly relies majority opinion The writ dismissal of the affirm the We error. of Crim the Texas Court on the stay of dissolve corpus and habeas in Hernan appeal on direct Appeals inal execution. (Tex.Crim. State, S.W.2d 409 v. 805 dez AFFIRMED. findings the factual if it were as App.1990), with re court law of that rulings DENNIS, Judge, dissenting: Circuit Amendment Sixth spect are whether presented questions appeal, direct On corpus claim. habeas Amend Hernandez’s Sixth Baiza Rodolfo re Appeals of Criminal Texas Court counsel, in Estelle defined ment Amend Fifth only Hernandez’s viewed 68 Smith, 451 U.S. v. Amend his Sixth Regarding claim. ment violated; (1981), whether L.Ed.2d 359 claim, habeas the state state habeas ment in violation to death sentenced he was found master special and the trial court because the Amendment Eighth relating specifically facts аdditional consider that it could was not instructed But claim. Sixth mitigating effect ruling on clearly deferred by declining childhood of his abused present claim, question “the noting that required penalty, impose the death the decisions or not to whether ed as 302, 109 S.Ct. Penry Lynaugh, v. U.S. ... and Powell Estelle v. Smith (1989); and whether 2934, 106 L.Ed.2d L.Ed.2d U.S. [492 of the Texas Court Crimi judgment of coun presence require ] his death refusing to aside nal set mental health ex the state’s sel where to, involved an contrary sentence “was ‘not a assertion testimony is direct pert’s of, clearly application estab unreasonable *7 concerning future expert’s of an law, by the as determined lished Federal rather, other some but dangerousness’, States,” of the United Supreme Court diagnosis harmful of mental health form of 28 meaning U.S.C. within master special The case.” the defendant’s (1994 2254(d)(1) Because Supp.2000). § & not-as did trial court and the state habeas affir answered should questions these be expresses-recommend majority opinion as in of matively, negatively instead relief, that recommended of but the denial dissent. respectfully I majority opinion, Appeals Court of Criminal “the Texas closely to deter issue review this should I. requirement.” if there is such mine analysis is flawed majority opinion’s The Appeals, of Criminal Texas Court The recognize failure to that of its not review appeal, did on the state habeas ruling on no trial court made state habeas factual any additional or make claim; issue Amendment Hernandez’s Sixth court, That record. findings from the Appeals’s that the Texas Court Criminal merely issued argument, oral habe- without the state adopting curiam order per find- holding “[t]he that order per curiam “findings and conclusions” trial court’s master special ings [of and conclusions legal basis whatso- had no therefore either adopted by the trial court] are supported pretrial motion for a qualified disinterest- by the record upon such basis the ed expert to conduct a mental examina- sought relief is denied.” tion of the defendant regard to his competency to stand trial and his Accordingly, sanity the majority opinion of this at the time of the offense. court The mistakenly majority assumes that the full opinion then opinion of mischaracterizes the defense Texas Court of Criminal motion as containing a Appeals request on appeal, direct which “looks pertained beyond questions of only competency to Hernandez’s Fifth to stand Amendment ar- trial to the gument sentencing phase apрeal, on was that the trial. ruling court’s The motion also requested on Hernandez’s Sixth exam- habeas iner testify at course, claim. trial or Of at a hearing was not. On on the Hernan- Maj. issues.” dez’s at appeal, Op. habeas The Texas Court of defense motion, however, Criminal Appeals said it was contains no denying reference relief the sentencing based on phase but findings of is clearly fact aimed conclu- only at gaining sions of expert the habeas trial court. But assistance to be- evalu- ate cause whether the trial court competent did not any make ruling stand trial or or reach whether any conclusion, to advise the decision him to plead not guilty by the Texas Court of reason Criminal insanity. presently state habeas trial under review court made really has no fac- tangi- tual finding . legal ble basis. Hernandez’s counsel’s “request for appointment of an expert Only by a highly creative assumption was made solely for the purposes ex- can this read into the Texas amining the defendant relative to his Appeals’s Criminal terse per curiam order competency, filing a report, and testifying any kind of a disposition reasoned of Her- regarding competency trial or nandez’s Sixth Amendment habeas claim. hearing.” (internal (Emphasis original) The only reasonable creative assumption quotations omitted). And, brackets per be represents curiam contrary to the majority opinion’s charac- conflation of analysis Hernandez’s Fifth terization of the defense motion as a re- and Sixth Amendment claims and a con- quest for testimony at issues, clusion they can both rejected con- the defense specifically motion limited the stitutionally for the same reason. That request testimony on Hernandez’s decision, however, is one that is contrary competency to stand trial-not for testimo- to, of, unreasonable application ny the guilt or penalty phases of a clearly law, established Federal as deter- capital murder trial. mined by the Supreme Court of the Unit- *8 issue, ed States. This the reasons majority opinion The mischaracterizes that the majority opinion misappre- also the state trial court’s on the ruling defense hends Eighth Hernandez’s Amendment pretrial motion as “granting] the motion claim, are in addressed detail below. Be- part.” Maj. Op. court, at 347. The fore addressing major these legal issues fact, denied the defense counsel’s motion detail, however, more it is first necessary entirely and sponte sua entered an order to point out the majority’s errors mis- sharply objects inconsistent with the of the construing procedural the and factual con- motion. The state habeas trial court made text of case. this this clear when it found a fact the that
The majority opinion quotes small, a “trial court (Em- this den[ied] motion.” portion selected the of defense phasis counsel’s in original). Hernandez’s introduced counsel Defense that statement opinion’s majority The objec- any without records no medical prior made examination direct State’s “[t]he counsel Defense prosecution. Sparks by the Dr. tion by examination of
mention impeach to records these misleading. Dr. used properly atOp. ..Maj. Hernan- that Sparks of Dr. testimony qualifications his the in presenting Sparks, society as to dangerous- menace sociopathic a future dez in predicting expert into taken had that he he had criminals, told erroneous ness Hernan- ap- to respect diagnoses with the reliable and testified account examined charged schizophrenic. with paranoid persons chronic as a dez proximately to “dif- competency those aggravated their then prosecutor to evaluate crimes The time of at the his sanity their to rehabilitate attempting by stand ficulties” prosecutor, The Sparks Dr. asking offenses. alleged their on redirect witness a described question, “hypothetical” psychiatric examination his pretrial about in minute matching crime diagnosis and a criminal the doctor’s of Hernandez intro- the evidence Hernandez that detail time. mental condition Hernandez’s guilt phase at the him against duced basis or factual legal is no There reasonable that certain almost It is trial. sug- that, is no “There assertion majority’s Dr. that have understood jurors would full have a did not Hernandez gestion dangerous- prediction Sparks’s about counsel with to consult opportunity or someone to Hernandez referred ness examination, both scope of a committed had him who identical compe- demonstrate to its use regard highly also It is to his. crime identical mitigating possible develop and to tency jurors would reasonable probable burden 348. The Maj. Op. at evidence.” was one Hernandez inferred have its defense prove the State is on who crimes charged with persons claim-that Sixth Dr. psychiatrieally examined been had scope notice of had actual Hernandez Sparks. examination-not. psychiatric pretrial not present does majority lack of knowl- prove on Hernandez it when impartially objectively or the facts Randy HeRtz, edge. Liebman s. James & when began difficulties “[t]he states CoRpus and Pro- PRACTICE FedeRal Habeas opportunity seized defense (1998 Supp.2000) & 31.2, § at 1322 cedure mitigation on cross-examination develop of prov- (“[T]he ... bears burden state diagnosis of an old rested on theory that all preponderance ing by of Hernandez made schizophrenia chronic to establish necessary facts dispositive robbery.” stay for prison earlier during an which for a defense prerequisites understand easy to It is Maj. Op. Texas, see, relies.”); Satterwhite e.g., advocate this prosecution why the 1792, 100 486 U.S. began difficulties in truth the But view. argu- (rejecting State’s L.Ed.2d 284 Sparks, called prosecution when construc- may be defendant ment giv- without had examined who pretrial scope of tively notified counsel, enrolled defense to his ing notice examination). assertion Factually, of a doctor, guise under *9 suggestion” “no has been there Her- diagnose hypothetical, transparent opportunity given not Hernandez “antisocial having an person as a nandez possi- about his counsel to consult “there’s predict personality” examina- psychiatric pretrial bility that continue to that he high likelihood phase penalty encompass might society.” tion to danger are a acts that perform future dangerousness issue is also incor particular case upon which his opinion was rect. The Texas Court of Ap based; Criminal to Dr. Sparks’s testimony to peals found unequivocally “[t]he rec whether Hernandez will have a future ord does not demonstrate that Dr. Sparks mental state or condition because that is warned [Hernandez] that anything [he] an ultimate issue for the alone. said could be used against him at a sen In order to understand the significance tencing proceeding.” State, Hernandez v. legal errors the majority opinion 805 S.W.2d 411 n. 2 (Tex.Crim.App. uncorrected, leaves the factual proce- 1990) (en banc). And, recognized by dural background of Hernandez’s claims the federal district court proceed in these must be fully and accurately set forth. ings, “it is uncontested petitioner’s trial counsel w[ere] never advised Dr. II. Sparks’[s] competency evaluation would A. also address the petitioner’s issue of future dangerousness.” Memorandum Opinion May 15,1985, On Rodolfo Baiza Hernan- аnd Order at 103. dez charged by indictment with the 7, 1985, March murder Cervan, of Victor
Indeed, there was ample evidence that one of five Mexican nationals whom he had neither Hernandez nor his counsel were robbed, shot, and abandoned ain remote informed his statements could be used area of Comal County, Texas. On April by Dr. Sparks at capital penalty trial to 1985, the 207th Judicial District Court for predict his dangerousness. future County, Texas, Comal Braunfels, New court, state trial in its pretrial psychiatric appointed two attorneys in private practice order, examination did not Hernandez to represent him. At his arraignment, or his counsel such notice. Sparks pleaded Hernandez not guilty. The State testified that he did not give Hernandez announced its intention to seek the death prior notice psychiatric examination penalty. that the examination data could be used the doctor testify against him at the August On defense counsel for death penalty hearing. The state courts (1) Hernandez filed a motion alleging that never found that the defendant was not competent to stand ^counsel had notice pretrial that the psychiatric ex- inability due to understand the amination could encompass the future dan- proceedings or to rationally consult with issue, gerousness and it is error for (2) counsel; the defendant had been exam- majority to make such an inference from ined and treated for mental disorders from the record here. 1969 to experts medical United States Army, Depart- the Texas
The majority opinion also mischaracter- ment of (“TDC”), Corrections and Bexar ize the facts state proceedings when Texas; (3) County, it states that “[t]he lodged defense no ob- been able to determine present whether to jection to the use of the hypothetical, apart an insanity defense. from an error Maj. recitation.” Op. objected Defense counsel also The defense counsel’s motion requested hypothetical question grounds that the court appoint “qualified dis-
that it called Sparks for Dr. to express an expert interested at County expense to expert opinion on dangerousness conduct mental examination of the De- without first establishing the medical with regard fendant competency [his] knowledge, techniques, and data in trial,” stand and to file a report of written *10 report written his include to Sparks Dr. coun- and the court with examination
the pro- and examinations description and а funds counsel (2) defense sel; grant observations used, doctor’s the cedures to expert examine an to select permission to competence to findings pertaining competency to his and relative the defendant Her- as to trial, as doctor’s (3) the notify counsel trial; defense stand stand to retardation, and or the exami- illness time, of place mental date, and nandez’s the to needed obser- ex- the prescription to attend doctor’s counsel the to enable nation (6) treatment, hospitalization; that defense (4) vation, or amination; notice take and sub- any such objects complete to to Sparks Dr. “specifically ordering counsel are counsel defense Medical Examination unless a Certificate examination mit (7) present”; be order- Illness, necessary; to opportunity an if afforded for Mental examina- the entire exami- (5) alternatively, order a mental to conduct Sparks ing Dr. counsel’s for defense issue to the video-recorded tion of Hernandez nation ex- (6) medical benefit; order offense alleged use and time of the at the insanity report observa- regard to include aminer in this report written a and file Hernandez’s regarding findings a counsel, containing tions and and with court to trial, status stand to competence procedures, of the examination description retardation, re- and and illness mental findings pertaining and observations observation, treat- or recommended quired pre- a defense; (8) ordering that insanity (7) schedule and ment, hospitalization; or mental defendant’s hearing on the trial defen- whether to hearing determine a by trial be held to stand competency trial. stand competent to dant was 1985, 9, at the September on court Braun- Courthouse, August New County on trial court state Comal (1) (9) defense the de- denying Texas; ordering that fels, an order and entered to notify with which the court for funds to requests permitted counsel’s fendant to ex- psychiatrist offer independent to an he intended employ whether and the State mental report on within insanity defense amine time advance notice capacity, the ex- receipt of after hours twenty-four examination, right location report. pert’s examination, attend An- San transported Hernandez (2) ap- expert; court-appointed select County Sher- Texas, tonio, by the Comal psychiatrist Sparks, Dr. C. John pointing where, August on Department, iffs Texas, County, the Bexar by employed psychiatrist a forensic Sparks, Dr. Floor, Bex- is 2nd courts, address “whose County the Bexar employed full-time Texas,” Antonio, Jail, San County ar custody courts, interviewed of Hernan- examination a mental conduct jail San Antonio County Bexar at the trial, to stand competency regarding dez conclud- minutes and eighty approximately court, and report a written file to stand trial. competent he ed that later no to defense copy furnish or review Her- obtain did not Sparks Dr. (3) 1985; ordering the August than psychiatric or TDC Army U.S. nandez’s Department County Sheriffs Comal coun- records, defense although medical Sparks’s Dr. office transport Hernandez Sparks Dr. put motion sel’s (4) Dr. examination; declaring that for obtained Sparks them. notice of by the court be advised Sparks Dr. Rich- report single and reviewed of Hernan- circumstances the facts Bexar Cameron, employee ard meaning of “and offense charged dez’s 2,1974, regard- courts, April dated County trial”; ordering to stand incompetency
355 ing a psychiatric examination Moreover, conducted contrary to the majority’s as- purposes for the sertion, of determining Hernan- Hernandez’s original counsel’s re- competency quest dez’s to stand trial for two for a report separate regarding men- tal aggravated robbery charges. Dr. illness or Camer- retardation did not in any report way on’s concluded indicate that they expected, that Hernandez giv- were notice, en agreed “present[ed] picture clinical dangerous- schizo- future phrenia, ness would within schizo-affective type, para- scope pretrial examination by In noid ideation.” a letter disinterested ex- trial pert that they requested. judge attached to his official Defense coun- report, Dr. sel’s motion cited its reported uncertainty Sparks about findings that Hernan- whether to pursue an insanity defense at mentally dez competent to stand trial trial, and made no mention of sentencing and probably had been since March issues; therefore, the record only 1985; supports that Hernandez was neither mental- reading request for a separate report ly ill mentally retarded; nor and that Her- on mental illness and prepa- retardation as nandez suffered from an person- antisocial ration of a mental trial, status defense at ality disorder. In the body the report and not as an anticipation of the sentenc- itself, Dr. Sparks observed that he “found ing issue of future dangerousness. By no evidences [siс] from []his examination reading anticipation such into the defense suggest the presence of psychosis motion, counsel’s the majority jumps to a 1974”; described but he did not other- conclusion that has no support in the rec- wise refer to or discuss Dr. Cameron’s Indeed, ord. the state habeas court’s diagnosis 1974 of Hernandez’s schizophre- fact-findings, to which we are bound to nia. The record reflects that Dr. Sparks’s accord a presumption correctness, report was mailed to defense counsel on 2254(e)(1) § U.S.C. (2000), state clearly 27,1985. August that the ‘'request for the appointment of Hernandez’s defense counsel were not an expert was made solely for pur- informed that scope psychiatric poses of examining the defendant relative examination of Hernandez Dr. Sparks his competency, filing report, 26, 1985, August would encompass testifying regarding competency at any tri- issue al or dangerous- hearing.” (in- future (Emphasis original) ness. The August quotations court’s ternal omitted). order and brackets not notify did defense counsel that Furthermore, Sparks testified that examination would include an inquiry into he did not warn Hernandez before the Hernandez’s future dangerousness. De- examination anything said he could be fense counsel’s motion had not asked for against used him at a sentencing phase. inquiry into future dangerousness, and State, See S.W.2d they had specifically objected exam- (en 411 n. banc) (Tex.Crim.App.1990) ination they unless were afforded notice (noting that deficiency record, in the and an opportunity to be present. The Powell, citing U.S. trial court denied the (in defense counsel’s 3146 turn citing Smith, Estelle v. su- entirely. Therefore, motion pretrial pra, precludes which psychiatric State’s psychiatric examination of Hernandez was examination a capital defendant encom- not the kind of examination his counsel passing the of his dangerous- issue requested. Instead, type of ness unless his counsel is notified ad- examination to which defense counsel had vance of scope of the examination and expressly objected. forewarned)). the defendant is also *12 Hernan- robberies; (3) testimony of armed tes- trial, Sparks Dr. competency At the Hernan- that officer parole former dez’s on Hernandez had examined he
tified that for sentence prison from his parole that, dez’s testified Sparks 26,1985. Dr. August had been robbery convictions armed per- antisocial an suffering from despite two possession for in mentally revokеd disorder, was Hernandez sonality of Dr. (4) testimony and handguns; report In the trial. stand to competent Sparks. into and introduced by Sparks Dr. filed hearing, he competency at the expert wit- as called was Sparks Dr. neither was Hernandez that concluded by psychiatry forensic the field of in ness The defense ill retarded. nor mentally he was testified He prosecution. introduction agreed counsel County, Bexar employed psychiatrist a competen- of [the purposes “for the report the Uni- graduated Texas; he incorrect- majority The only.” hearing cy] in Medicine College of Illinois versity of not ob- for counsel Hernandez’s ly faults residency a completed and testimony during Sparks’s to Dr.
jecting Insti- Psychiatrist at the Illinois psychiatry hearing was The hearing. competency in Mich- 1960; licensed he was tute to competency Hernandez’s to limited by the Ameri- certified and and Texas igan Sparks testified Dr. is all That trial. stand he had Psychiatry; Board can nothing about said hearing; he to at that for psychiatrist a military as in the worked dangerousness. Hernandez’s five past that for 'twenty years; and regard- testimony Therefore, Sparks’s Dr. courts for the state worked he had years examination psychiatric ing pretrial psychiatrist a County as forensic Bexar and objectionable, was not testifying examining and engaged in that that to reason believe had no counsel persons approximately respect improper- be used later examination com- their evaluate crimes charged with testi- phase penalty Sparks’s Dr. during ly sanity their to stand trial petency mony. offenses. alleged their time of competency September On defense not tendered Sparks Dr. competent Hernandez jury found quali- his on for cross-examination trial court rendered trial, stand reliability the relevance or on fications effect, signed which was to that judgment show the record does nor opinion; of his 16,1985. September on qualified him to found the court relevantly based reliably and opinion his B. expertise field of of his methodology on the trial, Her- three-day guilt-phase a After particular in the data the facts and capital jury of by a convicted nandez however, counsel, did not Defense case. 25,1985. September murder to Dr. objection threshold make sen- capital punishment At Hernandez’s testimony. Sparks’s 26, 1985, September hearing on tencing prosecution examination, the direct On evi- additional introduced prosecution “hypo- termed what it Sparks Dr. law en- asked (1) two testimony of dence: First, the prosecutor question. thetical” had a that Hernandez officers forcement as true to assume Sparks Dr. regard- asked community in the reputation bad capital murder of a description “pen detailed law-breaking; ing peace offender, as well “hypothetical” a so-called having- identifying packet” crimi- prior description of detailed as a separate two convicted been nal record of Second, that offender. objection overruled that also. Pursuant Sparks was asked express the trial court’s rulings, Dr. Sparks testi- to whether the offender that, would commit fied opinion, high “there’s a criminal acts of violence that would consti- likelihood that he would continue to per- tute a continuing threat to society. form acts that are danger to society.” *13 defense objected counsel that prosecu- the The prosecution’s question plainly re- tion had failed to an establish evidentiary ferred to particular the evidence that had or medical basis for such an opinion; that been presented against Hernandez in both the opinion would either be a baseless guilt the penalty and phases of the trial. conclusion or else would be on extra- based The criminal record Dr. Sparks was asked judicial evidence in violation of Hernan- to assume mirrored Hernandez’s “pen dez’s to confront the witnesses packet,” introduced into evidence at him; against and Sparks’s that Dr. answer penalty phase. The detailed description of would constitute an opinion upon the ulti- “hypothetical” so-called murder identi- mate issue of dangerousness future and cally matched the unique details and cir- thus an invasion province of the of the cumstances of the capital murder of which jury. After the trial court overruled the the jury had found Hernandez guilty.1 objection, defense counsel moved for a Consequently, jury must have under- mistrial on grounds that the jury would be stood that Dr. Sparks was referring to unfairly and unduly prejudiced by Dr. Hernandez or an offender identical to him Sparks’s opinion as to future dangerous- when he said “there’s a high that likelihood ness for which the prosecution had estab- he would perform continue to acts that are lished no basis, evidentiary but the court a danger to society.” Also, it is likely that prosecutor described the criminal con- at the ground!.] men on the Assume fur- duct hypothetical offender as follows: person ther that this and his brother-in-law then left all five men who had been serious- [P]lease following!;] assume the That on ly injured by gunfire 7, 1985, away[.] and drove March man this introduced himself Further assume that person this illegal Antonio, arrived at to five in San aliens that he upon mother’s house hearing and amade deal to take them to and Dallas that news of the shooting got illegal of the five he his brother-in-law out bed who crime, day aliens on the along person then he stated with this the five drove Reagan that President had called men to a and remote him area in northwest Comal him, that the County[.] President had told had called Assume further person that this personally him to his and house and got said that brother-in-law the five men out overpopulated the State was car and and gunpoint at asked him up walked them help get him rid small of some of hill[.] the aliens Assume further that walk- ing coming Antonio, that up them were over that here to San one of hill five men States, stumbled and United person began was that he shot this and then laughing, twirling gun Assume person stating back[.] that this and then he made was lay gun-slinger[.] all five men up[.] down face Assume further Assume that short- ly person further that person this this gunpoint then thereafter was with another demanded their man and possessions person that this property twirling was two hands, began guns and then systematically shooting with his hearing after and an- each of them[.] Assume other shooting that on broadcast about further least two of the illegal that gun person men five was no aliens this said he had more than two to four inches illegal killed one of the their aliens and shot the others, gun throats when he fired the into Reagan their that President had called body[.] Assume per- further that after this him and said that the United States is over- bullets, emptied son gun populated, first he went many people that so needed to to his exchanged guns time, brother-in-law and during killed a certain and was firing then returned gun once laughing more talking it. about in Hernan- present schizophrenia a psy- reasonably assumed jurors Also, asked when history. medical dez’s qualifica- Sparks’s Dr. possessing chiatrist psy- forensic whether counsel defense adequate basis an have tions must like mathe- science an exact support chiatry was knowledge to medical fact it was replied matics, Sparks See, Dr. e.g., Satterwhite opinion. such experience but 249, 259, exactly guesswork “[n]ot Texas, U.S. we’ve had contacts what (1988). use of .with L.Ed.2d have Thus, may person.” objection cross-examination, without On regard- Sparks's gathered intro- defense prosecution,
by the dangerousness Hernandez’s ing records medical TDC duced Hernandez. contacts actual based diagnosed had been he showing *14 para- for chronic prison, in examination, prosecutor while treated redirect On Hernandez’s that and schizophrenia; as to opinion noid his for Sparks Dr. asked antipsychotic included had prob- treatment behavioral “personality type Thorazine), electro- (Stelazine and drugs my in that described was the man of] lem!] treat- treatments, neurotone convulsive Dr. have?” ... would you hypothetical Further, de- ments, psychotherapy. and deal, great “Assuming a testified: Sparks Dr. testimony elicited counsel fense it him but describe not it did schizophre- paranoid that chronic Sparks life, the his in things certain described acuteness stages between fluctuates nia descrip- to a closest to be appears behavior a to be remission, considered but and personali- the antisocial is labeled that tion symptoms illness; that lifelong by Sparks, Dr. Thus, point, this ty.” controlled, how- or can be reversed disease not been that had a deal” “assuming great and medication, psychotherapy, ever, by evidence, psychiat- amade into introduced or unrealistic that changes; environmental offender “hypothetical” diagnosis ric hallucina- auditory and thinking illogical Ac- personality. an antisocial having hearing belief as, example, tions, to elab- invitation the prosecutor’s cepting an or instructions spoken commands relative compassion and “love on orate President, are as the such authority figure, added, “they individuals,” Sparks Dr. these disease; and symptoms common others. about concern very little have correctly diag- had been that, if Hernandez own their focused to be They tend schizo- paranoid having chronic nosed that consequences forget any and desires be- that he possible it phrenia, people.” on other the effect or might occur before, during, hallucinations sieged pros- with Further, agreed Dr. Sparks capital his after commission fair “be that would suggestion ecutor’s this With offenses. related murder and could person type this say then that dem- sought to evidence, defense whatsoever.” any problem kill without could opinion Sparks’s that Dr. onstrate examination, Sparks Dr. recross On assist relevantly reliably person defense counsel agreed with probability there was deciding whether have can schizophrenia paranoid with criminal commit would Hernandеz viola- love, legal marriage, problems constitute violence would acts and bizarre tions, people, of other fear society, because threat continuing request, counsel’s At defense behavior. had been Sparks Dr. forming his TDC examined Sparks crimi- the offender’s only asked assume Hernan- testified records medical to assume asked had not been acts nal confined have been appeared to paranoid dez chronic significant factor prison’s psychiatric treatment unit be- during the examination could be used September tween 10 and November against him at the penalty phase of the 1975; that Hernandez was on trial; medication and that “Mr. Hernandez read it during there; that, confinement through and he signed a form that have I “at that time diagnosis [ ][h]is was schizo- provided for that purpose indicating that phrenic, paranoid chronic, type, moderate- he understood what was on the form.” severe; ly prognosis ... was During these proceedings, the State did guarded, meaning that the doctor did not not offer evidence to show de- know whether he would continue to func- fense counsel been given notified or tion well or again have an illness as opportunity to confer with pri- severe as he had had.” or to Dr. Sparks’s psychiatric examination of him. examination, On redirect the prosecutor abruptly posture abandoned the of asking The court ruled that the witness would
hypothetical questions and immediately be allowed “to testify as to his medical asked Dr. if Sparks he had examined Her- findings, all of which have been opened up nandez in August 1985. When the doctor by questions presented by” defense coun- affirmative, answered prosecutor However, sel. the court that, also ruled asked: “Based on that examination what *15 because it had denied the defense counsel’s your was impression?” request to present be during the examina- tion, court interrupted and asked “this witness will not be allowed to to approach the bench. In testify the bench con- about any probabilities that Her- ference, the defense counsel stated that nandez he would be a continuing threat object would to “all of society this[.]” The prose- based upon the interview.” The argued cutor that the defense court noted counsel had that defense counsel had re- “opened the door” going urged objection “into his medi- and would have con- past cal which we didn’t tinuing bill touch.” The of exception.
was sent out. When jury returned, Sparks, Dr. on
Out presence of the jury, defense examination, redirect testified that he had counsel objected to the question on the examined Hernandez in August 1985 and grounds that Hernandez had made diagnosed state- “the type of personality type or ments prejudicial to his penalty phase de- of problem” had he as “301.70 antisocial during fense the examination without valid personality recross, disorder.” On he tes- waivers of rights Hernandez’s under the tified that he conducted a “mental status Fifth and Sixth Amendments. The court examination” of Hernandez for min- eighty invited prosecutor utes; to examine the doc- that a mental status examination tor concerning the advice rights. Dr. does not cover any family history; that he Sparks that, testified prior to the examina- asked for but did not obtain or review tion, he reviewed with Hernandez an out- Hernandez’s TDC medical pur- records for line of the advice rights, it, had him read poses examination, of his report, com- and and Hernandez it. signed The doctor petency fur- hearing testimony; that he would ther testified the rights as he had like to have had them during the examina- them listed were silent, to remain tion they were important; that he to have his attorney present during the like would to have known if Hernandez examination, and to terminate the exami- taking a drug like Doxepin at that nation, but that rights not did include a time because that was important; warning that anything Hernandez said he did not examine physically Hernandez testified Sparks Dr. summary, In On on him. tests any medical perform for Hernandez examined previously had he that, if he testified
redirect, Sparks Dr. ex- and, on that based competency mental medical prison Hernandez’s reviewed had TDC medical and Hernandez’s amination examination, rather prior records hearing, penalty at the introduced records during penalty time first than (1) had ofwas diag- two made have would hearing, he (2) Hernandez personality; an antisocial diagnosis “The initial one: instead noses schizophrenia; paranoid chronic also schizophrenia paranoid been have a con- schizophrenia (3) paranoid chronic would be diagnosis remission, the second ill- mental fluctuating, incurable tinuing, re- On disorder.” personality antisocial antipsychot- be controlled that can ness that Hernan- cross, Sparks testified Dr. environmental medication, therapy, ic could schizophrenia paranoid chronic dez’s ais (4) personality an antisocial changes; than stage, rather acute in an been have cannot condition mental permanent crime remission, time at the (5) medication; treatment or by any cured redirect, the court On March compe- mental Sparks’s Dr. time at the objection counsel’s defense overruled chronic examination, Hernandez’s tency allowed predicate proper lack remission was in schizophrenia paranoid testimony following to elicit prosecutor by medi- being suppressed was not Sparks: Dr. it is crime (6) cation; time at the paranoid paranoid chronic [chronic have who People possible that active, than or- rather generally well ... schizophrenia are schizophrenia] could remission, Sparks intelli- reasonably although are generally ganized, having anyone which; and may be as to plans opine although gent, *16 Hernan- such as personality do make and an antisocial illness, they can of part from by Dr. dez’s, Sparks as determined free of they’re When plans. make in- and the of Hernandez examination his situa- a real deal with plans illness him Hernandez’s about supplied formation they frequently tion, the illness during a present would activity, probably criminal ideas. with delusional deal society. threat continuing given testified, description “In the also He penalty at the defense Hernandez’s In hypotheti- initial [prosecutor’s me in the testimony attorney elicited the hearing, his of indication no was there question,] cal family his cousin, lived with who had of his par- aof illness; indication there was that testified She a he child. while behavior, is the that and kind ticular severe victim of had been the Hernandez person in antisocial found type behavior between abuse mental and physical recross, doc- On final disorder.” [sic] The years. and thirteen ages of three with defense agreed tor Hernandez, indicated cousin his brunt child, paranoid received oldest [with for someone possible it’s abuse, in turn which physical or believe mother’s to think schizophrenia] physical continual her own right-hand Reagan’s stemmed President they’re cousin The testi- husband. heard her they have man, abuse gun-slinger, she incidents particular carry to two fied Reagan President voices was still Hernandez When to witnessed. be able and still plan [him] aout said, had beat- child, mother his she to be small seem would things that other do broom, the broom breaking awith en him suffering from ... normal lying him leaving head over handle schizophrenia. paranoid disease on the incident, floor. In another part she of this case you wherein were called testified, he upon had been taken into a guilt bed- determine the or innocence Defendant, room parents beaten and all of severely the evi- dence, if any, with admitted large-buckled you before belt. Defense coun- part second of the trial wherein you sel also are introduced drug records from the called upon to determine the answers to county jail, which showed that Hernandez Special hereby Issues you. submitted to had regularly signed receipts for doses of The Doxepin, jury tranquilizer not specifically and antidepressant, instructed it could for five consider or days prior give effect to his mental examina- “mitigating evidence.” tion by Dr. Sparks. unanimously “yes” answered In capital accord sentencing the two requisite questions, and, as re effect,2 statute then in Hernandez’s jury quired by law, the trial court sen
was instructed that it was to answer two tenced Hernandez to death. The Texas “special issues”: Court of Criminal Appeals affirmed Her [1] Was the Defendant, conduct of the nandez’s conviction and death sentence. HERNANDEZ, RODOLFO BAIZA State, (Tex. Hernandez v. S.W.2d that caused the death deceased, (en banc). Crim.App.1990) On motion for VICTOR MANUEL SERRANO CER- rehearing, objected Hernandez VAN, committed deliberately and with court’s failure to address the issue of expectation reasonable the whether he had been deprived of his Sixth death of the deceased or another would counsel, although it result? arose from the same complained conduct
of in his Fifth Amendment claim based on Estelle v. Smith. The court of criminal [2] Is there a probability that the De appeals denied rehearing without com fendant, ment. The RODOLFO BAIZA United States Supreme Court HERNAN DEZ, denied petition would commit for a writ criminal acts of vio certiorari on June lence that constitute a continuing Texas, U.S. threat to society? *17 (1991). L.Ed.2d 726
The
was also
that
instructed
in determining each of these Special Is-
III.
you may
sues
take into consideration all
A.
of the evidence submitted
you
in the
full
case,
is,
trial of the
that
all
of
unsuccessfully
After
seeking a writ of
you
submitted to
in the first
corpus
habeas
in
courts,
the Texas state
37.071(b)(1)
Tex Code Crim. Proc. Ann. arL.
issue,
&
finding
special
on each
2.
answer:
(2) (Vernon 1981).
special
The third
"Whether,
issue
taking into consideration all of the
by
37.071(b)(3)
authorized
article
raised
evidence,
—"if
including the circumstances of the
evidence,
by the
whether the conduct of the
offense, the defendant's character and back-
killing
defendant in
the deceased was unreа-
ground,
personal
and the
culpability
moral
of
response
sonable in
provocation,
any,
to the
if
defendant,
is a
mitigating
there
sufficient
by the
presented
deceasedf]"
not
—was
circumstance or circumstances to warrant
jury.
Hernandez's
the State
Neither
nor Her-
that sentence
imprisonment
of life
rather than
objected
nandez
to its omission. In
imposed.”
death sentence be
Tex.Code
Legislature
substantially
amended
37.071(e)(1) (Vernon
Crim. Proc. Ann. art.
alia,
by,
statute
adding
requirement
inter
2000).
jury,
that the
returning
after
an affirmative
Also, a state-court
1495.
405, 120 S.Ct.
petition
the instant
filed
Hernandez
Court’s
contrary to the
will be
decision
States
in the United
relief
habeas
federal
the state
if
precedent
clearly established
Texas.
of
District
Western
District for
are
facts
of
set
“confronts
court
on
petition
filed
Because
a deci-
from
indistinguishable
materially
by the
governed
case is
April
ar-
nevertheless
Court
th[e]
sion of
the Antiter-
by
amended
as
statute
habeas
from [the
different
a result
rives
ofAct
Penalty
Death
Effective
rorism
in
“Accordingly,
Id.
precedent.”
Court’s]
Murphy,
(“AEDPA”).
Lindh
scenarios, a federal
two
these
of
either
2059, 138
326-27, 117
S.Ct.
U.S.
2254(d)(1)
§by
unconstrained
be
court will
of the
(1997).
Section
L.Ed.2d
falls with-
decision
the state-court
pro-
part, now
statute,
pertinent
habeas
to’ clause.”
‘contrary
provision’s
in that
vides:
406,
410,
2254(d)(l)’s
120 S.Ct.
§
1495. “Under
guaranteed Sixth Amendment
application’
‘unreasonable
clause ... a fed-
(1)
counsel because
the state court subject-
eral
may
habeas court
not issue the writ
ed him to a custodial examination by a
simply because that court concludes in its
psychiatrist,
state
without advance notice
independent
judgment
the relevant
to his defense
time,
counsel of the
place,
state-court decision applied clearly estab-
scope, or
(2)
nature of
examination;
lished
law
federal
erroneously
incorrect-
psychiatrist
state
concluded
ly. Rather, that application must also be
examination that Hernandez had an antiso-
411,
unreasonable.” Id. at
364 final, conviction became state-court dez’s precludes counsel right to Amendment that “dictated” precedent the Court’s psychiatriс him to subjecting from State apply Appeals Criminal of Court future of his yielding examination court enter- time that at the holdings those de notifying first without dangerousness Amendment Sixth Hernandez’s tained examina psychiatric that the counsel fense Williams, claim. habeas to counsel right their issue of encompass will tion (citing 1495 391, 120 S.Ct. Powell, at 529 U.S. See dangerousness. future client’s 301, 288, 109 Lane, U.S. 489 Teague v. (citing 3146 681, 109 S.Ct. at 492 U.S. (1989)). Her- 1060, 334 L.Ed.2d 103 461-69, 101 S.Ct. Smith, at U.S. 451 v. Estelle if the relief to entitled is therefore consistently nandez 1866). has The Court S.Ct. Criminal of Court the Texas defendant, of decision that, capital recognized Amendment his Sixth rejecting exami psychiatric to a to submit whether to, or “contrary was either claim habeas of the issue encompassing nation of,” application an unreasonable involved death a life literally “is dangerousness It was law. both. that established not be should which defendant matter’ hand ‘guiding face without to required ” 2. Es v. Smith (quoting Id. counsel.’ of tri- Cir.1979); proceedings, (5th state habeas In the 694, 708 telle, F.2d 602 defi- without 69, suggested, in effect 53 al court Alabama, U.S. 287 v. Powell the court that recommending, (1932)) nitely (citing Sat L.Ed. 158 77 S.Ct. already could, not if it had 1792). appeals criminal 254, 108 S.Ct. terwhite, at U.S. so, reject done implicitly Sixth Amendment when Consequently, claim right Amendment v. Sixth Estelle set out requirement notice rejected it had same reasons for the met, held the Court Smith ap- direct on claim Amendment his Fifth im improperly penalty death “the peal. examination psychiatric posed at testified psychiatrist] [the
on which trial court habeas Essentially, the state in violation proceeded phase penalty (1) “[p]etitioner’s and concluded found right Amendment Sixth Smith, 451 [defendant’s] v. Estelle under of error claim at U.S. counsel.” assistance 68 L.Ed.2d S.Ct. U.S. Powell, 492 1866; see also 471, 101 S.Ct. appeal” on rejected direct was raised Satterwhite, 3146; 686, 109 at S.Ct. State, U.S. S.W.2d v. (citing 255-56, 108 atU.S. must ... (2) Court 411-12); “[t]he Trial Sixth regard [the any ruling defer Smith in the Estelle v. forth rule set issue to counsel] “clearly cases Supreme line since Appeals, of Criminal Texas Court law, determined Federal established regard to issues with the related States.” the United were Petitioner evaluation Sparks’[s] 2254(d)(1). clear Because § 28 U.S.C. appeal”; rejected direct raised Hernan- occurred before establishment rights his Sixth Amendment whether issue White for the exclusively on rely does not dez Accordingly, majority's only citing it violated. argument, were of his thrust main best are thinly bringing up White veiled proposition that methods for the twice up dan- White as only the future It sets presentation hypothetical questionable. to remove not suffice effort further will in an gerousness issue tear down strawman v. Smith. of Estelle presented the strictures legal issues State Hernandez, avoid the confuse indeed, exten- argues more Satterwhite, much Smith, and Powell. by Estelle control Satterwhite sively Powell and
365 “the question presented as to whether or not the decisions of Estelle v. Smith On direct appeal, the Texas Court of ... and v. Powell require ... Criminal Appeals rejected had Hernan presence of counsel where state’s men- dez’s Fifth right Amendment against self- tal expert’s health testimony is ‘not a di- incrimination claim in a full opinion that
rect assertion of
expert’s
opinion con-
was silent with
respect
his Sixth
cerning
dangerousness,’
rather,
but
right
Amendment
to counsel claim. Her
some other form of mental
diagno-
health
State,
nandez v.
(Tex.Crim.
ifmine
there is such a requirement.”
peals observed that the Supreme Court in
On
appeal
the state habeas trial Estelle v. Smith noted that some courts
court’s findings
conclusions,
including
had held that the Fifth Amendment does
those
concerning Hernandez’s
Sixth
not prevent a defendant who
psychi-
offers
claim,
Amendment
the Texas Court of
atric
testimony
an insanity defense from
Criminal Appeals issued a per curiam or-
being required to submit to a sanity exam-
der stating that
findings
and conclu-
ination by
prosecution’s
psychiatrist,
sions
the trial court “are supported by
805
at 412 (citing
S.W.2d
Smith,
Estelle v.
the record
upon
such basis the relief
451 U.S.
1866);
101 S.Ct.
and fur-
sought is denied.” Consequently, the Tex-
ther noted that
court
appeals
as Court of
Appeals’s
Criminal
decision
Estelle v.
open
Smith had left
the possibili-
rejecting Hernandez’s Sixth Amendment
ty of a
requirement
similar
for a defendant
right
to counsel habeas claim
appeal
who wishes to use psychiatric evidence
adopted
findings
and conclusions of the
on the
defensively
issue of future danger-
court, viz.,
Texas habeas trial
ousness,
(citing
Smith,
id.
Estelle v.
court of criminal appeals’s rejection U.S. at
n.
in turn
Hernandez’s Sixth
right
Amendment
citing
Estelle,
705).
Smith v.
602 F.2d at
justified
claim could be
an appli-
Seсond, the Texas Court of
Ap-
Criminal
cation or extension of its holding
reject-
peals
noted
ing Hernandez’s Fifth
right
Amendment
Buchanan v.
Kentucky, 483 U.S.
against self-incrimination claim on direct
(1987),
366 (Tex.Crim. 769, 762 State, 767 S.W.2d v. Third, 2906). the Texas S.Ct. at of banc)). (en Court The Texas App.1989) from inferred Appeals of Criminal Court only Powell held that that, Appeals Criminal and Smith in Buchanan language
the
the State’s
to
object
to
right
psy-
the
TDC
waived
introducing [Hernandez]’s
“[b]y
psychia
the state
testimony of
Dr.
soliciting
the
and
use
records
chiatric
insanity
his
to rebut
rec-
concerning
psychologist
those
and
trist
opinion
Sparks’[s]
right
the
the
also waived
defense,
to
he
the
that
door’
but
‘opened
ords, appellant
testimo
competen-
of this
his
use
the
object
results
to
State’s
of the
to
use
State’s
Id.
sentencing
at
purposes.”
burden
satisfy its
for
rebuttal
ny
exam
cy
Ap-
dan
Criminal
of future
Fourth,
separate
Court
issue
Texas
the
proving
State,
testimo-
Sparks’s
Dr.
Powell
(citing
that
Id.
concluded
peals
gerousness.
examination
(Tex.Crim.App.
psychiatric
his
on
357-58
based
ny
S.W.2d
Her-
prove,
to,
re
i.e.
banc)).
tended
Court
1987) (en
Supreme
The
relevant
that
but
dangerousness,
future
Court
nandez’s
of the
judgment
versed
Sparks
prevented
had
trial court
state court
because
Appeals
Criminal
directly
expert
expressing
from
Amend
and Sixth
Fifth
“conflated
had
future
upon Hernandez’s
specifically
support
no
provided
and
analyses,
ment
all of
Fifth,
on
based
dangerousness.
waived
petitioner
conclusion
its
circumstances,
Texas Court
these
at
Id.
right[.]”
Amendment
Sixth
Hernan-
concluded
Appeals
Criminal
3146.
S.Ct.
against self-
right
Amendment
Fifth
dez’s
empha
Powell
Court
The
violated.
not been
incrimination
between
distinction
important
sized
Sixth Amendment
and
Fifth
appropriate
4.
dictum
noted its
The
analyses.
and
of Powell
issues
legal
facts and
The
defendant cоuld
that a
v. Smith
Estelle
Powell,
very similar.
are
case
present
by as
right
Amendment
Fifth
waive his
subjected to
defendant, was
capital
intro-
“and
insanity defense
serting the
court-des
by a
examinations
court-ordered
testimony,
psychiatric
dueling] supporting
psychologist
psychiatrist
ignated
the State
deprive
may
his silence
[because]
doctor,
com
to determine
chosen
contro
it has of
means
only effective
sanity at
stand
petency
he has
an issue that
on
verting
proof
Powell,
at
492 U.S.
offense.
time
465, 101
case,”
at
451 U.S.
injected into
coun
and his
Powell
681,
Amendment
so
issues
as not to confuse
(citations omitted).
the distinct analyses that
No
apply.
mention of waiver is contained in the
Consequently, contrary to the majority’s
portion of
opinion
either
discussing the
reading
rebanee,
erroneous
misplaced
Sixth
right.
Amendment
This is for
is distinguishable
Buchanan
and has no
good reason.
it may
While
be unfair to effect
upon
Supreme Court’s Sixth
permit
state to
a defendant to use
Powell,
holdings
Amendment
Estelle v.
psychiatric testimony without allowing Smith, and Satterwhite that govern Her-
the state a means to rebut that testimo-
nandez’s Sixth
right
Amendment
to coun-
ny, it certainly is not unfair to require
cases,
sel claim.
State,
Under those
if the
рrovide
state to
counsel with notice
although exercising due diligence, had
before examining the defendant concern- been genuinely surprised by the introduc-
ing future dangerousness. Thus, if a
tion of Hernandez’s medical records as
defendant
surprise
were to
prosecu-
evidence of
paranoid
his chronic
schizo-
tion on the eve of trial by raising an phrenia, the trial
might
have been
insanity defense to
supported by
be
psy-
justified in ordering a continuance and di-
chiatric testimony,
might
the court
be
recting Hernandez to submit to examina-
justified in ordering a continuance and
by
tion
a state-appointed psychiatrist.
directing that the defendant
submit
case, however,
Even in such a
the State
by
examination
a state-appointed psychi-
required
the Sixth Amend-
atrist. There would
justification,
be no
right
ment
counsel to
Hernandez’s
however, for also directing that defense
counsel notice of the examination and its
counsel receive no notice of this exami-
scope and
adequate
opportunity to con-
nation.
fer with and advise
prior
The distinction between the appropri-
examination. The
Court’s cases
ate Fifth and
analy-
Sixth Amendment
emphatically
permit
do not
State
ses was
recognized
the Buchanan
introduce evidence of
dangerous-
future
case,
decision.
In that
the Court held
ness derived from an
ex-
unconstitutional
the defendant waived his Fifth
amination of a capital
through
defendant
Amendment privilege by raising a men- violation of his Sixth
right
Amendment
conclusion,
tal-status
defense. This
counsel, even when the State has been
however, did not suffice to resolve the
diligent
can genuinely
claim surprise.
defendant’s separate Sixth Amendment
Thus,
claim.
separate
Consequently,
in a
under the actual
section of
circum-
case,
stances
Court went on to ad-
of Hernandez’s
the denial
issue,
dress the Sixth
Amendment
Texas Court of
con-
Criminal
cluding that on the facts of that case Hernandez’s Sixth Amendment claim was
counsel knew
the scope
what
markedly contrary
the ex-
to and in conflict with
amination would be
place.
Powell,
before it
the Supreme
took
Court’s decisions
Indeed,
counsel
request-
Smith,
defense
himself
Estelle v.
and Satterwhite. The
the Sixth
charged,
formally
Bu-
dant
upon
reliance
in its exclusive
majority,
precludes
to counsel
The State
error.
chanan,
this
repeats
psychiatric
to a
subjecting him
State
not
and could
case did
of his
yielding
examination
pen-
for a
ask
justifiably
surprise
claim
de-
nоtifying
first
without
dangerousness
of the defendant.
examination
alty phase
examina-
psychiatric
fense
*23
placed
Sparks
Dr.
were
and
the State
Both
(2)
issue; and
encompass that
will
tion
knowledge of
actual
and had
notice
proceeds
examination
psychiatric
the
when
treat-
and
diagnoses of
prior
Hernandez’s
and the State’s
right
of that
in violation
schizophrenia
paranoid
chronic
ment for
defen-
of the
expert presents
the coun-
and
at the TDC
doctors
by state
the penalty
dangerousness
future
dant’s
In their
Dr. Cameron.
ty psychiatrist,
examination,
re-
the
on the
based
phase
employ a de-
funds to
motion
pretrial
im-
improperly
penalty
sulting death
counsel
expert, defense
psychiatric
fense
be reversed.
and must
posed
of Hernan-
State
notified the
and
psychiatric
prior
and
the Texas Court
illness
dez’s mental
decision
The habeas
military.
contrary
and the
in the TDC
Appeals
treatment
of Criminal
phase
Smith, Powell,
penalty
in his
and Satterwhite
Dr.
admitted
v.
Sparks
Estelle
TDC
right
was aware of
testimony that he
the Sixth Amendment
definition of
his
it held
prior
counsel,
records
the extent
medical
psychiatric
v.
Dr.
Estelle
and
of Hernandez.
in Buchanan
language
examination
pretrial
the rule of
Dr.
knowledge
exception
his
revealed
Smith created
Sparks
viz.,
cases,
when
of Hernandez’s
diagnosis
Supreme Court
prior
Cameron’s
evi-
psychiatric
re-
pretrial
in his
schizophrenia
introduces
the defendant
paranoid
it to
testimony.
hearing
phase
uses
penalty
at the
competency
dence
port and
he
expert,
of the
Furthermore,
was aware
the State’s
Sparks
Dr.
cross-examine
use of
involving Hernandez’s
door” to the State’s
“opens
the case
facts of
of the
dangerousness
conduct
and bizarre
future
hallucinations
evidence of
auditory
viola-
schizophrenia
obtained in
paranoid
that had been
indicating active
defendant
right
later
to coun-
testimony. And
Amendment
began
he
tion of
Sixth
before
not
acknowledged sel,
expert
does
testimony
Sparks
long
so
state
in his
de-
directly upon the
expertise
any opinion
Hernandez’s
express
his field of
that in
man-
based on
dangerousness
with a classic
was consistent
fendant’s
behavior
schizophrenia.
examination
defendant.
paranoid
ifestation
exception
Amendment
The Sixth
Texas Court
by the
applied
waiver rule
deciding
criminal
in
by the court of
adjudication
The
Criminal
Supreme
repeated
with the
case
conflicts
present
appeal
in the
habeas
appeals
conflating
and dictum
in
made in Powell
Buchanan
error
Court’s decision
Smith,
analyses,
well as
Sixth
Amendment
in Estelle v.
the Fifth
Sixth
contrary
as defined
to counsel
right
in a decision
resulting
Amendment
Smith,
applica-
Estelle v.
to,
holdings
unreasonable
involved an
the Court’s
clearly
Powell,
estab-
of,
Supreme
Court’s
Satterwhite.
tion
precedents.
lished
Powell,
First,
clear
as the Court made
Smith,
contained
discussions
those “waiver
Estelle
solely with
and Buchanan deal
Smith
clearly established
Powell, and Satterwhite
self-in-
right against
Fifth Amendment
defen-
a capital
once
law
federal
crimination....
No mention of waiver is
the guilt stage of trial.”
Moreover, capital guilt in in support the Court Powell conclud- of an affirma- Smith, ed “[njothing defense, any tive mental prosecu- other status Court, decision of this tion’s that a suggests excerpts introduction from the defendant opens report the door to pretrial psychiatric the admission evaluator psychiatric evidence on danger- future rebuttal not does constitute violation by raising ousness an insanity defense of the Fifth or Sixth Amendments. The instruc jury’s reasonably cannot precedent Buchanan case, full consider it to not allow capital tions did extended by made clear mitigating itself and effect to ation the Buchanan Estelle v. Smith: The threshold it with contrasting childhood. his abused is again counsel whether Smith’s the AEDPA unclear under question [I]t psy- about informed been a rule had even to apply seeks whether [I]n examination.... chiatric clearly established that was of law was not aware event, counsel defense final on June conviction became time his include examination merits of Hernandez’s Because dangerous- into Smith’s inquiry directly gov claim are Eighth Amendment view, Thus, in our Smith ness. decision Supreme Court’s erned to discuss opportunity received 302, 109 S.Ct. 492 U.S. Lynaugh, Penry v. scope. or its examination his counsel answer 2934, 106 L.Ed.2d contrast, Here, petitioner’s counsel Therefore, the ma yes. question evalu- psychiatric requested himself duty to upon its jority opinion defaults ... аssumed .... It can be ation law, Federal clearly established apply petition- consulted with defense Court’s as determined this examination. the nature of er about own by applying its Penry, decision *25 424, 2906. Buchanan, at 107 S.Ct. 483 U.S. by resolv law and of federal interpretation the same unreasonably ignoring Only by claim Amendment Eighth ing Hernandez’s Fifth between crucial dissonance to the opposite resolution in a manner and decision Buchanan Amendment by the claim Penry’s Eighth Amendment could claim Amendment Hernandez’s Sixth Court. Supreme pur- Appeals of Criminal Texas Court case into to shoehorn Hernandez’s port For the same holding. narrow Buchanan 2. another, does reason, v. Smith Estelle and Supreme Lynaugh, Penry In v. by application support the reasonably not (1) Penry’s the time “at held of a of Criminal the Texas Court final, clear from it was became conviction waiver rule exception or opening” “door 586, Ohio, 98 S.Ct. 438 U.S. v. [Lockett Amendment
reject Hernandez’s Sixth
(1978)
[Eddings
and
2954,
]
57 L.Ed.2d
language
only was the Smith
claim. Not
869,
Oklahoma,
102 S.Ct.
455 U.S.
and
habeas trial
by
the Texas
relied
(1982)
could
that a
]
State
71 L.Ed.2d
waiver
addressed
appellate courts
Four-
not,
Eighth
consistent with
right against self-
Amendment
the Fifth
Amendments,
the sentenc-
prevent
teenth
incrimination,
the more indis-
rather than
effect to
giving
considering
er from
coun-
right to
pensable Sixth
back-
the defendant’s
relevant
dicta,
sel,
opposed
it was also
but
circum-
decision,
or to the
ground
character
Court’s
holding, of
against
mitigate
“clearly es-
the offense
part
not
stances
and therefore
2254(d)(1).
at
492 U.S.
penalty[,]”
imposing
law” under section
death
tablished
(2)
Williams,
2934;
Penry
1495. 318,
at
S.Ct.
rule
“[t]he
529 U.S.
109 S.Ct.
evi-
mitigating
such
when
[sought]—that
C.
retardation
his mental
[of
dence
ju-
Texas
presented,
childhood]
abused
jury
given
...
instructions
must
be
ries
that he
sen-
also claims
give
possible
for them
that make
Eighth
to death
violation
tenced
to that mitigating
effect
evidence in deter
all of Penry’s mitigating evidence in an-
mining
penalty
swering
whether the death
the three special
should
issues. Id.
imposed
not a ‘new rule’ under
—-is
issue,
special
The first
which asked
Teague
because it is dictated
Eddings whether the defendant acted “deliberately
[,]”
318-19,
and Lockett
id. at
109 S.Ct.
and with the
expectation
reasonable
(3)
2934;
“[underlying
Lockett
Ed-
the death of the deceased ... would re-
dings is
principle
that punishment
sult,” impermissibly
jury’s
limited the
directly
should be
related to
personal
function because the term “deliberately”
defendant!,]”
culpability of the criminal
id.
had not been defined
Legis-
319, 109
(4)
2934;
enough
S.Ct.
“it is not
lature,
the Texas
Ap-
Court of Criminal
simply to allow
present
the defendant to
peals, or the trial court’s instructions.
Id.
mitigating evidence to the
sentencer[-][t]he
2934. Assuming
that the
sentencer must also be able to consider
jurors
‘deliberately’
“understood
mean
and-give effect to that evidence in impos-
something more
...
than
‘intentionally’
id.; (5)
sentence!,]”
ing
murder,
“[i]n order to en-
committing
jurors
those
may still
sure reliability in the
have been
give
determination that
unable to
Penry’s
effect to
appropriate
mitigating
death is the
evidence in
punishment
answering
in a
the first
case,
special
Id. The
specific
issue.”
Court concluded
jury must be able to
that the
could
jury
give
full effect to
give
consider and
any mitigating
effect to
Penry’s evidence under the first special
evidence relevant
to a defendant’s back-
issue
“deliberately”
was not de-
ground and character or the circumstances
fined “in way
that would clearly direct
crime!,]”
2934;
id. at
fully
Penry’s
consider
mitigat-
therefore,
“in the absence
in-
ing evidence as it bears
personal
on his
informing
structions
the jury that it could
culpability.” Id. at
As who jury that “to instruct majority argument State’s Penry Penry acknowledged, grant discretionary render a that it could constitutionality a death [of held “that mercy, say penalty, ‘no’ the death and give effect to mitigating evi- evidence, Penry’s mitigating based on dence relevant to a defendant’s back- would be to return to the sort of unbridled ground and character or the circum- discretion that v. Georgia." led Furman stances of the crime. 238, (citing
Id.
408 U.S.
92 S.Ct.
327-28,
(internal
Id. at
long as the
subject
class of murders
Penry
first raised his
claim
narrowed,
capital punishment is
there is no in his application
post-conviction
for state
infirmity
procedure
constitutional
in a
observed,
relief.
IAs
supra,
the Texas
jury
allows a
mercy
recommend
based Court of Criminal Appeals denied Hernan-
mitigating
evidence introduced
application
dez’s
for post-conviction relief
defendant.”
Id. at
(2518), was corroborated which schizophrenia,” “paranoid of may sufferer that Petitioner indicating records suffering been could have he the sev- which through education received have crime, of this (2519-2522)[.] time of the commission grade enth any fur- defer must the trial court then omitted; ci- record (Internal enumeration ultimate law to the of conclusions ther included). tations of Court Crimi- of the Texas judgment claim, Penry to Hernandez’s regard In and Appeals, nal adopted the court habeas trial the state recom- However, court does the trial of law: conclusions following pertinent of Criminal Court Texas mend is some there finds This Court for sub- set” this case “file and Appeals abuse jury of child evidence before further for Court before the mission over a 10 Petitioner against perpetrated regard arguments with and briefs testimony of Defense See year period. Penry claim as Petitioner’s merits of Mendiola; witness * * * the evidence. herein under raised of Court regard With interpretation of Appeals’ Criminal emphases (Paragraph enumeration that, decision, appears Penry omitted). required a generally Court has past, the however, appeal, habeas On Hernandez’s mental retardation before showing of disregarded appeals of criminal the court entitled to a defendant is holding recommenda- court’s habeas trial the state State, instruction, v. Ramirez Penry see the case it “file and set” tions McGee, 636; Parte Ex 815 S.W.2d re- arguments submission briefs State, 77; 846 S.W.2d Rios v. S.W.2d In- Penry claim. garding McPherson, 310; 851 S.W.2d v. State noted, crimi- stead, court of have as I 279; State, 846; v. 842 S.W.2d Richard sought the relief simply nal denied appeals Goodman, 383; 816 S.W.2d Ex Parte findings and conclusions on the based re- however, granted also the Court has court, determining they after the trial Penry doctrine where lief under Therefore, by the record. supported were evidence of cumulative “troubled there is habeas decision review the we should and emo- childhood, mental abnormal adopting appeals criminal court condition, and sexual aberrations.” tional trial the state habeas incorporating 65; State, v. 808 S.W.2d See Gribble and conclusions. findings court’s law. is still valid Penry The decision Texas, 350, 113 U.S. [509 Johnson v. See (1993)]; 2658, 125 L.Ed.2d findings Court
The United States
court’s
trial
state habeas
The
certiorari,
conclusions,
vacated
state
granted
which the
upon
and re-
Appeals judgments,
per
its
appeals
based
Criminal
criminal
of Criminal
to the Texas Court
relief to Hernan-
manded
curiam denial
habeas
cases for reconsid-
dez,
at least
and inconclusive.
five
were ambivalent
Texas,
not,
as the
light
Johnson
court did
eration
habeas trial
state
are,
pend-
asserts,
still
presumably,
mistakenly
cases
recommend
majority
those
of Criminal
ing
state habeas
before
of relief. The
denial
*29
(1)
evi-
“there is some
Appeals;
found that
court
perpe-
child
jury
abuse
before
“some dence
the trial
has found
court
Since
year
over a
Petitioner
abuse,
against
and “some evi-
trated
of child
evidence”
(2)
period[]”;
that “the Penry
Penry’s
concluded
from
history of maltreatment.
(3)
]”;
decision is still valid law[
concluded The Supreme Court concluded such a
that the state
of criminal
had
appeals
background of abused childhood was relе-
“generally required a
showing mental
vant mitigating evidence that
jury
retardation
... a defendant
before
is enti- must be instructed it may fully consider
instruction,
Penry
tled to a
...
[but] has
effect
in deciding
whether to
granted
also
relief under
Penry
doc-
impose a sentence less than death. Conse-
trine where
there
cumulative
quently, by denying
claim,
childhood,
‘troubled
abnormal mental and
by the
decision
Texas Court of Crimi-
condition,
emotional
and sexual aberra-
”
nal Appeals was contrary to clearly estab-
(emphasis
original);
tions[ ]’
lished federal law as
determined
that,
concluded
it had
found some
Supreme
Williams,
Court.
529 U.S. at
evidence that Hernandez suffered from
(“A
Regarding the first special Her- a. case, nandez’s as in Penry, provided Hernandez’s evidence of an term abused definition childhood was materially indistinguishable “deliberately” given any instruction that *30 376 from indistinguishable materially were regard jury could that the would indicate Court Supreme the which upon those of abused childhood history Hernandez’s Consequently, result. a different reached it to decline might cause that as evidence of Criminal by the the denial Therefore, sentence. the death impose to con- relief was state habeas of that, of the absence “[i]n Penry dictates Supreme clearly established to trary in a ‘deliberately’ defining
jury instructions
precedent.
jury to
the
clearly direct
would
that
way
ev
mitigating
fully [Hernandez’s]
consider
b.
culpabili
personal
on his
as it bears
idence
court, in
habeas
Because the state
was
jury
that the
be sure
we
ty,
cannot
conclusions,
of
to some
referred
its
evi
mitigating
to the
effect
able to give
criminal
court of
by the state
decisions
history ...
[Hernandez’s]
dence of
men-
showing of
holding
as
appeals
special
the first
issue.”
answering
in
abuse
Penry
to a
prerequisite
retardation is
tal
323,
377
2954)
604,
added);
Penry
id. will be
(emphasis
contrary
98 S.Ct.
if
applies
it
318,
at
(approvingly quoting
may consider, the sentencer refuse to as a law, any
matter of
relevant mitigating evi-
c.
”)
113-14,
dence.’
(quoting
issues,
concluded
Court
A.
in
further
entitled to
constitutionally
it
jury that
could
informing the
structions
Court
Texas
The decisions
evi
Penry’s
give effect to
consider and
regarding
Criminal
the death
declining
impose
...
claims were
dence
Eighth
Sixth
(internal
citations,
to,
quotations,
involved an unreasonable
“contrary
penalty.”)
omitted).
of,
Federal
clearly
established
application
But
and brackets
Supreme
law,
by the
as determined
the effect
distinguished
Graham
2254(d)(1).
§
The next
Court,” 28
ability
U.S.C.
jury’s
upon
issues
special
analysis is
required
in the
step
appropriate
to Graham’s
effect
to consider
what extent
and to
to determine whether
Id. at 475-
youth.
mitigating evidence
applicable to
rule is
any harmless error
(“Even if
evi
Graham’s
113
892
S.Ct.
state-
each
underlying
error
constitutional
dence,
be
Penry’s,
significance
had
like
decision.
issue, it
special
of the first
yond
scope
evidence—un
apparent
Fulminante,
is
Graham’s
U.S.
In Arizona v.
relevance
Penry’s
mitigating
like
307-08,
113 L.Ed.2d
—had
concerning his
issue
special
(1991),
two
recognized
the second
the Supreme
violations,
Whereas
dangerousness.
likely future
constitutional
categories
an affirmаtive
error”
Penry’s
compelled
as “trial
evidence
which it characterized
mitigat
“oeeur[s]
its
Trial error
inquiry, despite
defects.”
answer to that
“structural
case to
quite
during
presentation
Graham’s
ing significance,
amenable to harmless-error
jury,” and is
negative
readily
supported
have
could
quantita-
... be
“may
it
answer.”).
analysis because
Cir.1999).
tively
assessed
the context of other evi
Eighth
noted,
The
Circuit has
however, that,
presented
dence
order to
even
[the
determine
wake of the
Williams,
Court’s decision in
effect it
trial].”
Id. Structural
“not convinced that the AEDPA
defects “in
did
the constitution of the trial
abrogate
requirement
that federal ha-
mechanism,
defy
which
analysis by ‘harm
beas courts conduct a harmless error anal-
standards!,]”
less-error’
id. at
ysis
Kemna,
under Brecht.” Whitmore v.
1246, “require!
] automatic reversal
(8th
Cir.2000).
213 F.3d
conviction
they
infect the
*33
Tenth Circuit
recognized
has
the possible
process.”
entire trial
Brecht v. Abraham
tension
between
Brecht-O’Neal stan-
son,
619, 629-30,
1710,
507 U.S.
113 S.Ct.
AEDPA,
dard and the
but has expressly
harmful.” Woods v. 75 F.3d however, case, this because the State’s (5th Cir.1996) 1017, 1026-27 O’Neal, (citing violation of Hernandеz’s Eighth Amend- 992, 513 U.S. 115 S.Ct. 130 L.Ed.2d right ment is a structural defect that re- (1995)). 947 quires reversal, automatic and the State’s violation of his Amendment Sixth among There is division circuits as to harmless, regarded counsel cannot be whether the Brecht-O’Neal standard sur- even under the most state-friendly Brecht vived the AEDPA. The Sixth Circuit has standard. held that “the test set out the Supreme Court in explicitly Kotteakos and reiterat- B. ed in quite precisely Brecht captures Con- gress’s intent expressed in the AEDPA
and, therefore,
applicable.”
continues to be
A Penry violation
ais
structural defect
(6th
Killinger,
Nevers v.
169 F.3d
371
defying analysis by harmless error stan-
[that
conclusion
“[o]ur
of Satterwhite
reversal
automatic
requires
dards
does
error]
v.
an Estelle Smith
there is
it infected
death sentence
all constitu-
because not
inquiry
end the
phase.
penalty
entire
er-
to reversible
capital
in a
amount
violations
Court,
finding that
tional
upon
257-58,
Penry-
108 S.Ct.
by a
at
486 U.S.
precluded
ror.”
case
murder
analysis
penal-
error
in the constitution
that a harmless
(holding
type defect
being able
violations
mechanism
to Sixth
ty
applies
mitigat-
relevant
admis-
constitutionally
is limited
effect to
the “violation
when
Eighth
trial.”).
evidence,
In
in violation
ing
particular
sion of
de-
Amendment,
subjected the
never
has
violation
whether a similar
determining
See, e.g.,
analysis.
error
fect to a harmless
standard
Chapman
under
was harmful
2934;
Penry, 492 U.S.
review, the Satterwhite
errors on direct
Carolina,
1, 8-9,
476 U.S.
v.
Skipper
South
factors, rejecting
employed several
(1986); Ed
L.Ed.2d
which
appeals,
approach
116-17,
Oklahoma, 455 U.S.
ings
*34
to deter-
the record
examined
simply
had
(1982);
869,
1
Lockett
71 L.Ed.2d
evi-
admitted
properly
the
mine whether
608-09,
Ohio,
98
438 U.S.
jury’s
the
support
to
sufficient
dence
(1978);
generally
see
L.Ed.2d 973
57
258-59, 108 S.Ct.
at
486 U.S.
verdict.
Randy HeRtz, Feder
S. LiebmaN
&
James
the
instead considered
1792.
Corpus
and Procedure
Practice
al Habeas
rel
evidence
psychiatric
admitted
properly
ed.1998).
(3d
This
32.3,
n. 43
§
at
&1345
the
dangerousness;
future
to
evant
Penry
of the
in the nature
inheres
result
placed
prosecution
weight
amount
Eighth Amend
itself. When the
violation
who
psychiatrist
of the
expertise
on the'
un-
cruel and
against
proscription
ment’s
punish
testified
impermissibly
had
a
is violated because
punishment
usual
weight
amount
phase;
ment
impose
whether
jury must determine
ad
improperly
placed on
prosecution
fully
being able
without
death sentence
closing
in the
evidence
psychiatric
mitted
evidence,
mitigating
relevant
give effect to
nature
unequivocal
and the
argument;
sentencing trial mech-
the structure
testi
psychiatric
admitted
improperly
vio-
constitutional
creates the
anism itself
259-60,
constitute a continuing threat to soci- jury’s determination of the issue of future ety.” Doctor, your impression, “What is dangerousness, and was therefore not a your relative to diagnosis?” “He’s anti- harmless error under Brecht.
social, sociopath, he’s a he’s what we Conclusion used to call psychopathic.” “What does mean, “Well, Doctor?” that means assigned, For the reasons the decision of love, he cannot he compassion, has no he the Texas Court of Criminal re- can kill indiscriminately.” jecting Eighth Sixth and detailing After Sparks’s this section of Dr. contrary Amendment claims to and an testimony, prosecution elaborated on application clearly unreasonable estab- implications Sparks’s diagnosis lished Federal law as determined of Hernandez a sociopath. Court; id. at decisions of the and the Cf. court is error this majority opinion of the district decision reversing the this remanding case in not of writ the issuance for
that court corpus.
habeas (Aizen) MARROGI, J.
Aizenhawar
Plaintiff-Appellant, Ray
Ray Howard & HOWARD Inc.,
Associates, Defendants- Appellees. (argued), Breaz- Jeffrey Vaughan Collin Orleans, LA, No. 00-30786. Wilson, eale, New & Sachse Plaintiff-Appellant. for Appeals, States Court United Datz, Fifth Circuit. Ja- Wright (argued), B. Kenneth Jacksonville, cobson, Wright, Lembcke & 12, 2001. April Orleans, Dunbar, FL, New Anthony Paul LA, Defendants-Appellees. *36 BARKSDALE, WIENER, Before GARZA, Judges. M. Circuit EMILIO WIENER, Judge: Circuit THE UNITED FROM CERTIFICATE OF APPEALS COURT STATES TO THE FIFTH CIRCUIT FOR OF LOUI- THE SUPREME COURT SIANA, XII TO RULE PURSUANT THE LOUISIANA SUPREME OF SUPREME TO THE COURT AND THE OF LOUISIANA COURT THERE- JUSTICES HONORABLE OF: THE CASE I. STYLE OF in which style of the certi case (Aizen) made is J. fication is Azenhawar