Nelson v. Quarterman

Ortega’s Finally, argues counsel stated that Ricardo Specifically, Ortega only knew Gonzalez because he cumulative errors in this case warrant re Villarreal, him. some roosters from Gon versal. United States v. purchased (5th Cir.2003). argued zalez at trial that these statements F.3d While there case, admitted under the former testi were errors in should be these errors do 804(b)(1), mony provide Fed.R.Evid. and not exception, sufficient basis to warrant reversal, hearsay exception, Fed. the residual and we therefore decline to re R.Evid. 807. We review the district verse on the basis cumulative errors. rulings court’s for abuse of discretion. Torres, v. 114 F.3d 525- United States III. CONCLUSION (5th denied, Cir.), cert. reasons, For the above we AFFIRM the (1997). government no opportu had appellants’ convictions. nity plea colloquy question at the Orte statements, therefore,

ga about these 804(b)(1) apply

Rule does these exceptional

statements. We find no cir particular guarantees

cumstances or support

trustworthiness that would the use exception

of the residual to admit these Walker,

statements. United States — (5th denied, Cir.), F.3d cert. Billy Ray NELSON, Petitioner- U.S. -, 163 L.Ed.2d 513 Appellant, (2005); Phillips, United States v. 219 F.3d (5th Cir.2000). Therefore, n. 419 & 23 QUARTERMAN, Director, Nathaniel the district court did not abuse his discre Department of Criminal Jus- by refusing tion to admit the evidence tice, Correctional Institutions Divi- under these two rules. sion, Respondent-Appellee. Gonzalez contends for the first No. 02-11096. appeal Ortega’s time on statements against penal were statements interest and Appeals, United States Court should have been admitted under Fed. Fifth Circuit. 804(b)(3). R.Evid. review this chal We Dec. Mares, lenge plain only. error F.3d at 520-21. The statements that Gon actually

zalez seeks to admit are not incul Ortega. much of

patory as While Orte

ga’s plea inculpatory, statement

statements at issue are not admissible de

spite they part fact are of a

generally inculpatory statement because

they inculpatory. themselves are not Wil States,

liamson v. United plain no error in not There was

admitting the statements under Rule

804(b)(3). (argued),

Jack Knox Wall Law Office of Wall, Midland, TX, Rusty J.K. for Nelson. Larry (argued), Edward Marshall Aus- tin, TX, Quarterman. for JONES, KING, Before Judge, Chief JOLLY, HIGGINBOTHAM, DAVIS, SMITH, WIENER, BARKSDALE, GARZA, DeMOSS, BENAVIDES, STEWART, DENNIS, CLEMENT, OWEN, Judges. PRADO and Circuit STEWART, Judge: CARL E. Circuit A panel previously of this court affirmed Billy Ray the district court’s denial of Nel corpus petition challenging son’s habeas on ground his sentence that the Texas capital-sentencing procedure failed to constitutionally sufficient effect to his miti evidence, gating violation of v. I), Lynaugh (Penry (1989). 2934, 106 L.Ed.2d 256 Nelson See (5th Cockrell, Fed.Appx. Cir. 2003) Aug. (unpublished). peti Nelson Supreme tioned the of cer- writ granted tiorari. The petition, judgment, vacated our and re manded the case to this court for reconsid light eration in of the Dretke, decision Tennard v. (2004). Dretke, Nelson v. L.Ed.2d remand, panel court once

On screaming and he returned. began the district court’s denial Wheat again affirmed dead, Nel- corpus petition. Maynard pretended See Nel- Nelson’s habeas While Cir.2006). (5th Dretke, 442 F.3d 282 until she son v. son struck and stabbed Wheat banc, rehearing en Nelson ordered Having apart- died. He then left women’s (5th Cir.2006), Dretke, we 442 F.3d 912 ment. Penry I application again reconsider trial, sentencing phase At the case. progeny to Nelson’s We and its presented following mitigating Nelson here, that, presented the facts conclude evidence, fully more which we will discuss likelihood that there is a reasonable mother, rejected by his he was infra: precluded capital-sentencing scheme him completely by age abandoned who had giving full effect to Nelson’s (“abusive evidence); he childhood” by required evidence as Su- (“substance drugs and alcohol abused Court; accordingly, we REVERSE preme (3) evidence); he has troubled rela- abuse” court’s denial of habeas relief the district tionships with his brother and with wom- grant to with instructions and REMAND wedlock, en; had a child out of with he corpus. the writ of habeas permitted to have a whom he was AND PROCEDURAL I. FACTUAL a relationship; psychiatrist and testi- BACKGROUND suffering per- from borderline fied he was (“mental sonality disorder disorder” evi- jury a December On dence). jury to the death impose For guilty capital Nelson murder for found trial, at the time of Nelson’s Arti- penalty February slaying and brutal 37.071(b) of the Texas Code of Criminal cle neighbor, assault of his Charla sexual required jury to answer two Procedure during the presented Evidence Wheat. questions concerning evidence special issue phase of trial revealed the guilt/innocence “(1) mitigation: whether the presented gained to following: Nelson entrance defendant that caused the conduct by asking if he could apartment Wheat’s committed de- death of deceased was inside, cut phone. use her Once he liberately expecta- and with the reasonable prevent calling cord to her from telephone tion that the death of the deceased or her. help proceeded and then to stab (“the another would result” deliberateness roommate, found Carol He then Wheat’s “(2) issue”); and whether there is a special pregnant five Maynard, who was months that the defendant would com- probability time, out of get at the and forced her to mit criminal acts of violence that would room, living and enter where bed continuing society” threat to constitute bleeding Wheat was on her knees from her issue”).1 (“the future-dangerousness special Nelson told the women to stab wounds. jury special-issue ques- The answered both to clothing remove their and threatened affirmative, sentencing in the Nelson tions they kill if then forced them refused. He appealed to Nelson his sentence him death. perform to sexual acts on women Thereafter, and conviction to the Texas Court of Crim- he and each other. stabbed affirmed, Nelson Appeals; inal that court Maynard proceeded in the neck and Texas, (Tex.Crim.App. briefly 864 S.W.2d 496 strike Wheat. Nelson left but addressing provocation. jury Although legislature issue Nelson’s the Texas amended the 1. instruction, provocation sentencing special scheme in did not receive issues aspect pre-amend- therefore we do not address that of the Nelson was sentenced under the special sentencing special pre-amendment issues ment version of the issues. In some cases, given special also a third scheme here. 1993), Nelson’s conviction became final abuse had no mitigating beyond relevance scope certiorari of the special when the Court denied issues. Id. at 89. Texas, review, 1215, 114 Moreover, regard Nelson v. the other miti- gating presented, evidence [t]he Court instructed the on the petition for writ of Nelson filed state charge punishment, “You should con- corpus September arguing habeas sider and effect in answering each scheme, sentencing capital that the Texas your issue evaluation of all of the 1.e., questions, special-issue the two failed you, including before all as- to ensure that could pects background of the and character constitutionally required consideration of of the defendant and the circumstances and effect to his evidence of his ... crime.” The charges disorder, childhood, mental abusive jurors issues allowed the abuse under substance give effect to all presented mitigating L.Ed.2d He their answers petition February also filed a second including issues the intoxication of [Nel- 1998, alleging additional claims. Tex at the son] time of the offense. Appeals as Court of Criminal denied the Therefore, the court concluded findings writ based on the and recommen procedure was constitutional as parte dations of the trial court. Ex Nel applied. The court dismissed Nelson’s son, 49,886-01 (Tex.Crim.App. No. Oct. subsequent petition habeas as an abuse of 2001). Specifically, regard to Nel Nelson, 49,886-02 parte the writ. Ex No. claims, of son’s the Texas Court 2001). (Tex.Crim.App. Oct. that, recognized Appeals Criminal constitutional, penalty procedure petition “a death Nelson filed a for of writ habeas corpus must allow the to consider all relevant in the federal district court in Au- Nelson, parte gust rejected evidence.” Ex 2002. The district court Nel- (118th 8,214 No. at 88 Judicial District claim failing son’s for to meet the 2001) (find County, July Howard Tex. requirements of our now-defunct “constitu- law). ings of fact and conclusions of test.2 A panel tional-relevance” of this recognized court also de granted ap- where the court Nelson certificate of (“COA”) issue; however, beyond pealability fendant’s evidence is on this issues, scope of panel ultimately and the is affirmed the district unable to effect to its reasoned moral court’s denial of habeas relief. Nelson evidence, response to petitioned Supreme Court for writ of certiorari, procedure Supreme granted is unconstitutional as and the Court applying petition, panel’s judgment, the defendant. the law to vacated the case, the facts of Nelson’s the court noted and remanded the case to this court for drug Supreme that Nelson’s evidence of in light and alcohol reconsideration of the Dretke, required 2. The S.Ct. "constitutional-relevance” test v. 124 "(1) petitioner’s 'unique evidence show Supreme rejected Court the constitutional rel- ly permanent handicap[] severe with which evance test and reaffirmed that the standard through the defendant was burdened no fault "any tendency for relevance is to make the (2) of his own' and that the criminal act was any consequence existence of fact that is of permanent attributable to this severe condi probable the determination of the action more Scott, tion.” Davis v. 51 F.3d 460-61 probable or less than it would be without the (5th 1995) (citations omitted) (alteration Cir. omitted). (internal quotations evidence.” Id. below, original). As discussed in Tennard 292 Tennard, 542 based of decision in U.S. on an unreasonable determination L.Ed.2d 384. re- light presented On facts

mand, court panel again of this once in the court proceeding.” State U.S.C. 2254(d)(1); § court’s denial of habe- Taylor, affirmed district v. Williams All panel 362, 402-13, members con- as relief. three however, judgment;

curred in the there A state court’s decision correct no on the methodol- consensus “contrary clearly federal to” established claim.3 Nelson’s Accord- ogy analyzing (1) if law the state a rule “applies court ingly, rehearing this court ordered en that governing contradicts the law” an- banc, again and we reconsider the once cases, Supreme nounced in light Tennard to application differently the state court decides a case the facts of Nelson’s case.4 than Court did on set materially indistinguishable facts. Mitch-

II. DISCUSSION 12, 15-16, ell v. Esparza, (internal A. Review Standard of omitted). quotation marks A state court’s § Because Nelson filed his 2254 habeas application clearly federal established 24, 1996, after petition April this habeas law is meaning “unreasonable” within the governed by the proceeding is Antiterror- of AEDPA when state court identifies Penalty ism and Effective Death Act governing legal principle correct (“AEDPA”). See Fisher precedent, applies that but Cir.1999). (5th F.3d We principle objectively the case in un- jurisdiction to the merits of Nel- resolve Smith, Wiggins manner. reasonable because, petition son’s habeas as stated above, granted we him a COA his Pen- (2003). 471 L.Ed.2d Dretke, 442 ry claim. See Nelson v. F.3d 2253(c)(1). 284; § see also 28 U.S.C. A corpus may writ of habeas also issue if adjudication the state court’s of a claim AEDPA, a Under federal court “resulted in a decision that was based may grant corpus a writ of habeas an unreasonable of the facts determination respect any adjudi “with to claim that was light of the evidence in the presented court proceed cated on the merits in State proceeding.” State court 28 U.S.C. shows ings” petitioner unless the 2254(d)(2). AEDPA, § Under state adjudication state court’s in a “resulted to, findings court’s “presumed factual to contrary are decision was involved of, be correct” unless the clearly petitioner habeas application unreasonable es law, rebuts the presumption through Federal “clear and tablished determined 2254(e)(1); States,” convincing § Supreme Court of the United evidence.” (5th adjudication or that the a Miller 200 state court’s v. F.3d 281 Cir.2000). claim in a decision that was “resulted Judge (2006), opinion; 3. Chief Jones authored an S.Ct. L.Ed.2d v. 166 307 Cole Dretke, (5th Cir.2005), Judge judgment Stewart concurred in F.3d 494 cert. 418 Quarter only; concurring Judge granted Dennis filed a sub nom. v. Abdul-Kabir - Dretke, man, -, opinion. 442 F.3d Nelson v. U.S. 127 166 (2006), Smith, and Ex Parte 185 Supreme granted granted

4. We note that (Tex.Crim.App.) S.W.3d 455 cert. sub Dretke, Texas,-U.S. -, 442 F.3d 273 nom. v. certiorari Brewer Smith - (5th Cir.), -, granted, cert. U.S. 166 L.Ed.2d the district con We review court’s Jurek v. Texas and the Immediate regarding state clusions of law court’s Post-Furman Cases novo, application of federal law de and we In Georgia, Furman v. fact, findings review the district court’s (1972), Cockrell, any, if for clear error. Collier Supreme Court held that capital- state (5th Cir.2002). 300 F.3d sentencing schemes allowing the death Clearly B. penalty “wantonly Established Federal Ldtu to be ... freakish- ly imposed” by permitting unbridled dis- AEDPA, duty our

Under cretion in sentencing Eighth violated the determine whether the state court’s deter Fourteenth Amendments. contrary mination was to or an unreason (Stewart, J., 92 S.Ct. 2726 concurring). application clearly able established fed Furman, After began eral determined states Supreme law as rewrite statutes, Court at the time that Nelson’s conviction their penalty death restricting Williams, became final in 1994. See the classes of death-penalty eligible of- U.S. at 120 S.Ct. 1495. Tennard channeling jurors’ fenders and discretion Texas, and Smith v. two recent in cases in sentencing in an attempt comply claims, volving Penry Court with the Supreme Spe- Court’s directive. in unequivocally stated the relevant cifically, responded to Furman quiry precedent under its was whether “special capital-sentenc- with the issues” there was reasonable likelihood that the ing case, scheme at issue in this interpret would the Texas is designed guide jurors’ consider- precluded sues in a manner that it from ation of offered fully considering giving full effect to sentencing phase capital cases. all of the defendant’s evidence. Tennard, post-Furman The immediate See 2562; Texas, 37, Court cases addressing see also Smith v. this and other sen- tencing attempted schemes strike bal- curiam). (per This “full-effect” standard ance satisfying competing between two juror requires express be able to requirements require- constitutional —the moral response reasoned to evidence that ment of sentencing” “individualized mitigating beyond has scope relevance the unique takes into account the of each facts issues; i.e., special juror of the a cannot be defendant, require- case and each and the precluded electing from a sentence less preventing arbitrary imposi- ment of the than death if he that the mitigat believes tion penalty of the death that can result ing evidence offered makes the defendant giving from the sentencer unfettered dis- crime, morally culpable less for the if even cretion. cases announced the prin- These compelled he nonetheless feels to answer ciples that would underlie the Supreme the two issues the affirmative. pronouncement capital Court’s later that a II), (Penry See v. Johnson 532 U.S. sentencing scheme must allow the sentenc- 1910, 121 S.Ct. 150 L.Ed.2d 9 er to full effect to all of the defen- (2001); 320, 492 U.S. at 109 S.Ct. mitigating dant’s evidence. A Supreme review of the Texas, 262, In Jurek v. 428 U.S. 96 S.Ct. decisions this area demonstrates that (1976), 49 929 L.Ed.2d the this “full-effect” clearly standard was es upheld constitutionality the facial of by the time that Nelson’s convic tablished special-issues sentencing tion became final. the Texas scheme 294 scheme, lenges sentencing day that ruled on the the Texas same post-Furman penalty noting death the Texas Court Criminal

validity of v. Gregg four other states. See Appeals yet interpreted statutes of had not delib- 96 49 U.S. S.Ct. Georgia, provocation erateness and issues. (1976) (“[I]t the facial (upholding L.Ed.2d 859 yet Id. at 272 n. Georgia’s constitutionality capital-sen or not the jury’s undetermined whether scheme, class which narrowed the tencing questions of those would consideration death-eligible guided offenders and properly mitigat- include consideration of of mitigating consideration sentencer’s circumstances.”). ing Florida, evidence); aggravating Proffitt Eddings L.Ed.2d A Lockett v. Ohio (1976) the facial (upholding constitutionali Oklahoma scheme, ty capital-sentencing of Florida’s Echoing post-Furman these concerns class of death-eligible which narrowed the able to consider and sentencer be guided con offenders sentencer’s con- mitigating and aggravating sideration of stitutionally adequate way, Carolina, evidence); Woodson v. North Ohio, 438 U.S. Lockett v. 2978, 49 (1978), struck (1976) (striking down North Carolina’s statute, penalty down Ohio’s death mandatory capital-sentencing scheme be impose allowed the sentencer sentence no gave cause it sentencers discretion less than for certain crimes if death impose penalty the death for certain (1) evidence showed that Louisiana, crimes); Roberts v. offense, victim induced or facilitated the (1976) L.Ed.2d duress, a result of offense was capital-sentenc (striking Louisiana’s down coercion, or strong provocation, or ing imposition of the requiring scheme product psychosis offense men- crimes). penalty death for certain In Ju- plurality tal retardation. A of the Court rek, that, of the Court plurality explained scheme, sentencing explained that sentencing

while the Texas scheme was which allowed the sentencer consider face, on its must “[a] constitutional be aspects some on the allowed to consider basis of all others, presented not was unconstitu- but only why evidence not a death relevant tional because imposed, why be sentence should but also Eighth and Fourteenth Amend- Jurek, imposed.” it should not be sentencer, ments require in all (plurality opinion) 96 S.Ct. 2950 case, capital but rarest kind of Woodson, 303-05, (citing considering, precluded as a mit- Roberts, 2978); also see factor, of a igating any aspect defen- (plurality opinion). 96 S.Ct. 3001 dant’s and any character or record of Therefore, constitutionality “the of the offense circumstances of the procedures turns whether a for proffers defendant basis a sen- allow questions enumerated consideration tence less than death. particularized mitigating of factors.” Ju 604, rek, opinion); (plurality Id. 98 S.Ct. 2954 96 S.Ct. 2950. While — Marsh, U.S. -, see also Kansas observing future-dangerousness special 126 S.Ct. allowed consideration of some issue (2006)

types evidence, sentencing the Ohio mitigating (noting of the Jurek scheme in was unconstitutional plurality as-applied also left room chal- Lockett “because, by limiting jury’s consideration disciplinary er’s record as it bore on his mitigation specified to three factors is, ‘character’—that his ‘character’ as statute, ‘prevented cap- it sentencers in measured likely his future behavior.” giving ital cases independent weight 108 S.Ct. 2320. Justice mitigating militating O’Connor separately, concurred emphasiz- favor ”) a sentence other than death (emphasis that, ing although Jurek upheld the facial of added). later, years Four in Eddings v. validity of capital the Texas sentencing Oklahoma, scheme, this case mitigating (1982), majority L.Ed.2d of the Court petitioner’s relevance of all of the adopted plurality’s the Lockett reasoning was within the scope special issues, of the an vacate Oklahoma death sentence ... petitioner [i]f had introduced miti- sentencing judge where the refused con- gating evidence about background sider, law, as a matter the defendant’s or character or the circumstances of mitigating evidence of his abusive child- the crime that was not relevant to the hood and treatable emotional disturbance. special verdict questions, or that had rejected appellate The Court the state relevance to the defendant’s moral cul- court’s application heightened-rele- of a pability beyond scope of the evidence, vance mitigating standard to the questions, verdict instructions noting while the sentencer can “deter- provided would have with no mine weight given to be relevant miti- vehicle for expressing its “reasoned evidence,” gating “may not it no response” moral to that evidence. If weight by excluding such evidence from case, this were such a then we would [its] consideration.” Id. at have to jury’s decide whether the ina- 869; Marsh, see also 126 S.Ct. at 2525 bility effect to that evidence that, (observing in Eddings, majority “a Eighth amounted to an Amendment vi- the Court held that a may sentencer not view, however, my olation. this is categorically refuse to any consider rele- not such a case. evidence”). vant (O’Connor, J., 108 S.Ct. 2320 Lynaugh Franklin concurring). The as-applied Court considered an Penry I A challenge to the Texas capital-sentencing term,

scheme for the first time in very Franklin v. next Lynaugh, just 101 considered such a in Penry case (1988). There, the Court held U.S. 106 L.Ed.2d 256. that the special issues allowed the to The I Court held that habeas relief give constitutionally adequate effect to the was appropriate juror presented because a petitioner’s mitigating good evidence of be- with the Texas issues could not during havior a previous imprison- given term of have scope effect to the full of the that, A plurality ment. Court stated present- evidence that had been petitioner’s because the good evidence of ed at sentencing phase. Penry, prison behavior did petitioner, death-row habeas had offered significance independent of its relevance to mitigating sentencing evidence at petitioner’s propensity I.Q. to commit fu- low indicating likely mental retarda- crimes, tion; ture resolving the organic “[i]n [future- brain disorder dangerousness special jury prevented the him appreciating issue] the surely weigh free to and petition- wrongfulness evaluate of his conduct conforming or law; troubled, scope a the beyond relevance of the deliber to the

his behavior issues, future-dangerousness ateness and anti-social upbringing; abusive to cul spoke Penry’s because it also moral Penry argued that personality disorder. therefore, to pability; jury the was unable issues, as in his special the Texas a give to the mitigating evidence case, vehicle to allow inadequate were an Eighth manner with consistent the give effect to this jury the to consider First, regard Amendment. with to the evidence, evidence had miti- because issue, special rea deliberateness the Court beyond scope relevance gating that, jury although give par soned a could Court, The special issues. Justice Penry’s tial effect to mental retardation majority, writing for the first O’Connor past finding and abusive that his ac Penry the relief he re- granting held that deliberate, tions were not a could also a announce new rule on quested would not deliberately conclude that acted Teague v. collateral review violation but, of his mental because retardation Lane, 109 S.Ct. childhood, ‘cul morally abusive “was less (1989), granting because such L.Ed.2d pable no such than defendants who have by Eddings and Lock- relief was “dictated excuse,’ ‘deliberately’ acted as but who ett” commonly that Id. term is understood.” 322-23, 2950 (quoting Califor granted peti The habeas Court then Brown, v. nia tion, “it enough is not emphasizing (O’Connor, J., concurring)). Without to simply present the defendant allow enabling instruction mitigating evidence to sentencer. impact Penry’s miti effect to also be able consider sentencer must gating culpability, evidence on his moral impos effect to that evidence in lacked an vehicle adequate ing sentence.” Id. at S.Ct. 2934. through express “reasoned its “ imposed Only then can the sentence ‘re Second, moral to this response” evidence. response flect a moral to the reasoned future-dangerous Court held that the character, and background, defendant’s ness instruction was constitution likewise ” Brown, crime.’ Id.(quoting California because, case, ally inadequate “Pen- 93 ry’s history mental retardation and (1987) (O’Connor, J., concur two-edged may ... abuse is sword: Indeed, ring)). “both the concurrence as diminish his for his crime blameworthiness understood,” and dissent in Franklin Ju- as proba even it indicates there is a rek, upheld in which the the facial bility in the dangerous that he will be capital-sentencing validity of the Texas future.” S.Ct. 2950. Be scheme, fundamentally on the ex “rest[ed] evidence, mitigating cause Penry’s viewed issues press assurance through of future dangerousness, the lens fully permit jury to consider all would an aggravating “is as fac relevant intro defendant tory ... did not ‘[i]t allow duced was relevant defendant’s major consider Penry’s thrust of evi ” background character and to the cir dence evidence.’ cumstances of offense.” Id. at (quoting Penry 96 S.Ct. 2950 added). (5th 2950 (emphasis Lynaugh, 832 F.2d Cir. 1987)). however, case, Penry’s the Court expressly of mental retarda- the Court did not Although held “full effect” tion and childhood had use words abusive reasoning upheld only makes clear that “full effect” is which validity the facial I, See, e.g., Penry special Jurek, it Texas issues what meant. scheme. See (“In 428 U.S. at (stating S.Ct. 2950 109 S.Ct. 2934 the absence of “the constitutionality of the proce- jury defining ‘deliberately’ in a instructions dures on turns whether the enumerated way clearly jury that would direct the questions allow particular- consideration of fully Penry’s mitigating consider factors,” ized mitigating but noting also as it bears on his personal culpability, we that “it yet is as undetermined whether or cannot be sure that the was able to jury’s not the consideration of special [the give mitigating effect evidence of properly issues] would include consider- Penry’s history mental retardation and mitigating ation of circumstances” in every issue.”) in answering abuse the first situation). Penry The I holding added); (emphasis id. at a case-specific Jurek, application of (“Penry argues that those assurances expressly left room for as-applied were not particular fulfilled case challenges. I, Penry See 492 U.S. at because, instructions, appropriate without (“[B]oth 109 S.Ct. 2934 the concurrence fully could not consider and and the dissent understood Jurek as rest- effect to the evidence of his ing fundamentally express on the assur- mental retardation and abused childhood ance that issues permit would decision.”). rendering sentencing fully consider all mitigating Further, Penry even the dissent in I rec- evidence a defendant introduced that was ognized that the full- applying Court was relevant to the background defendant’s effect standard: and character and to the circumstances of constitutionality turns offense.”). That Jurek only involved questions whether the allow challenge facial to the Texas statute is (and, not only factors to be considered apparent not from the Court’s deci- course, given in answering effect I, in Penry sion holding Texas statute questions), given but also to be applied, unconstitutional as but also possible tvays, all including ways that the Court’s in as-applied decisions chal- ... questions permit. do not What lenges constitutionality of the death by “fully the Court means consider” penalty procedures in other states. As (what Jurek) it must mean to distinguish above, discussed up- purposes, including consider all challenges penalty held facial to the death purposes specifically permitted by procedures in Georgia and Florida at the questions. it upheld same time that the facial chal- 109 S.Ct. 2934 lenge Gregg to the Texas statute. See v. (citation omitted). (Scalia, J., dissenting) Georgia, 428 can Thus there be no doubt that the 859; Florida, L.Ed.2d Proffitt a standard requiring 49 L.Ed.2d 913. Nev- to be able to consideration full ertheless, effect to a defendant’s full Gregg prior after Proffitt evidence. Franklin, [the held unconstitu- Court] “full State contends that the effect” specific applications tional of the same language progeny I and its “is Georgia and Florida statutes earlier [it] dicta, merely because would otherwise approved. Godfrey Georgia, had See Jurek”-, however, overrule argument Jurek, holding (vague overly

mischaracterizes con- broad 298 mitigating youth. factor evidence of their aggravating of rendered

struction unconstitutional); Graham, Hitch- In Teague sentence the Court held that death 393, v. U.S. 107 S.Ct. Dugger, granting [481 cock it from relief to habeas barred (1987),] 1821, (holding it 95 347 petitioner lodged Penry challenge L.Ed.2d who jury’s sentence, to restrict consid- unconstitutional to his death which became final factors mitigating eration of to those in petitioner argued 1984. The that the statute). enumerated in the give Texas did not constitu- special issues tionally adequate mitigating effect Texas, v. 113 Johnson youth. good evidence of character and (1993) (O’Con- 2658, 290 125 L.Ed.2d disposed Because the of the case on Further, J., nor, applying the dissenting). it did Teague grounds, not address full-effect full-consideration and standard petitioner’s merits of the Pen- substantive Jurek, require overruling does not because instead, ry claim; it considered whether can types mitigating “some of evidence be granting petitioner’s requested relief in the fully considered the sentencer would at the have constituted new rule special jury Pen absence instructions.” I, 315, petitioner’s time sentence became final (citing ny 492 U.S. at 109 S.Ct. 2934 1984, 175, holding at that Lynaugh, Franklin v. 108 (plurality opinion); 2320 Franklin v. reasonably Penny even if could be read 185-86, Lynaugh, 487 108 S.Ct. U.S. suggest mitigating Graham’s evi- (O’Connor, J., concurring judg 2320 adequately dence not un- was considered Collins, ment)); see also Graham procedures, der former Texas that is 521, 892, 113 S.Ct. L.Ed.2d U.S. inquiry not Teague. the relevant under (1993) (Souter, J., dissenting) (explain Rather, is question the determinative petitioner’s that the evidence of ing “[v]ol- jurists reading whether reasonable untary chores for and church attendance case law that existed 1984 could have relative, supplying with a and some level sentencing concluded that Graham’s could support for children” be consid [his] constitutionally infirm. We cannot future-dangerousness through ered say jurists all reasonable would issue). requires a special The Constitution compelled deemed themselves special court to determine whether accept claim in .... Graham’s as enable sentencer to issues seeks, therefore, ruling Graham consideration effect to full full Teague. would a “new rule” under capital defendant’s evi S.Ct. 892. dence; the standard not— “full-effect” term, Johnson, Later never and has with the been—inconsistent L.Ed.2d holding Jurek. challenge Court considered similar 5. Graham v. Collins Johnson Johnson, miti- direct review. Texas gating petitioner that the offered youth com- Penny

After the Court addressed was that of his the time he Graham, that, 122 mitted crime. The Court noted unlike that the L.Ed.2d other cases, in previous two more Court had considered youth as-applied challenges “[t]he relevance as a scheme, fact sentencing signa- both of which factor from the that the issues derives transient; qualities who ture petitioners youth denied relief to claimed are mature, impetuousness issues failed individuals may youn- dominate in recklessness themselves foreclosed from considering can Id. at ger years subside.” evaluating petitioner’s that in future dan- added). (emphasis S.Ct. 2658 Given these gerousness.”

unique youth, characteristics of the Court 2658. Thus Graham and Johnson stand beyond held this evidence did not lie proposition for the that youth, which is reach of applying the the sentencer the different in kind and mitigating effect special issues because “there is am- from Penry’s evidence of mental retarda- ple room in the of assessment future dan- childhood, tion and abusive fully can be juror gerousness for a to take account of given considered and effect through the youth mitigating the difficulties of as a special-issues sentencing scheme. sentencing

force determination.” applied Penry

Id. The Court the standard set II Boyde California, forth in II, In Penry (1990), to Kennedy, L.Ed.2d Justice “determine ‘whether there is a reasonable Johnson, joined author of majority, jury likelihood that has and the Court reaffirmed that the stan- challenged way pre- instruction in a effect, dard is again once invalidating full constitutionally vents the consideration of the application special of the Texas issues ” Johnson, relevant evidence.’ 509 U.S. at to Penry’s mitigating evidence of mental (quoting Boyde, 113 S.Ct. 2658 494 retardation and upbringing. abusive After 1190). U.S. at “Although Penry’s the Court vacated death sentence the reasonable likelihood standard does I, in Penry the State of Texas retried require that the defendant prove that Penry, again who was guilty found of capi- likely was more than not that jury tal murder and sentenced to death. Dur- prevented giving was effect to the ing the sentencing phase of the second evidence, requires the standard more than trial, the court special submitted the same a possibility mere of such a bar.” Id. The issues to the that were the focus of Court, again emphasizing unique quali- I, only this time the court also youth factor, ties of mitigating as a distin- provided a supplemental “nullification” in- “[ujnlike I, guished Penry noting that Pen- struction. This instruction directed the ry’s retardation, mental which rendered jury to consider the effect of all of the mistakes, him unable to learn from his Penry’s personal evidence on youth effects of may defendant and, culpability, experience subject and, change are as a determine, you giving [i]f when effect to result, readily comprehended are as a miti- evidence, if any, that a gating factor consideration of the second sentence, life negative reflected special issue.” consideration, finding to the issue under Further, 113 S.Ct. 2658. unlike the evi- sentence, than a ap- rather death is an of dence mental retardation at issue propriate response [Penry’s] personal juror’s consideration of the ..., culpability negative finding should impact youth petitioner’s on the conduct given to one of issues. independent “is not of an assessment of Id. at S.Ct. 1910. personal culpability any jurors .... If Court, qualities peti- fully analytical believed the transient aware of the youth culpable imposed by tioner’s made him constraints less the deferential murder, review, there is no reasonable likeli- AEDPA standard of held that the jurors hood that those would have deemed Texas un- Appeals Criminal had evidence; Penry I of all of the neither holding impact reasonably applied the attempted issues and it held that the State’s fix—the nullification when sufficient, constitution- instruction were constitutionally nullification be- instruction — effect adequate vehicles ally charge “it made the as a whole cause Justice evidence. Penny’s internally contradictory placed law- Court, O’Connor, stated: writing for the jurors in abiding impossible situation.” key under I is that the S.Ct. 1910. Under this scheme, very least, [a to “consider and be able there was “at the still in im- mitigating] evidence defendant’s ‘a ... reasonable likelihood 319, U.S., 109 sentence.” 492 posing in way a applied challenged instruction 2934, (emphasis 256 106 L.Ed.2d of Pen- prevented] that the consideration’ added). Texas, also v. 509 See Johnson ry’s mental and childhood retardation 2658, 350, 381, 125 U.S. 113 S.Ct. (quoting Boyde, abuse.” Id. (1993) (O’CONNOR, J., dis- 1190). 380, 110 S.Ct. Because State (“[A] be al- senting) sentencer [must] “in failed to define issue a either give lowed to consideration fall way clearly jury full would that direct to (em- mitigating circumstances” effect fully mitigating consider Penr/s it is when phasis original)). in For culpability,” on his personal as it bears for jury given express- “vehicle special-issues the Texas scheme was still that response’ to ing its ‘reasoned moral Penry’s unconstitutional as applied miti- sentencing de- rendering evidence, gating and the Texas Court of I, 328, cision,” 109 Penry 492 U.S. at Appeals’ Criminal conclusion otherwise 2934, that the that we can be sure application clearly was unreasonable treated as a jury “has the defendant II, Penry established federal law. 532 being]’ and [‘uniquely individual human 803, 121 (emphasis U.S. at S.Ct. 1910 add- that made a reliable determination has ed). id., sentence,” appropriate is the death v. 7. Tennard Dretke and Smith v. 319, (quoting 109 Woodson S.Ct. 2934 Texas Carolina, v. North 2978, 96 S.Ct. 49 L.Ed.2d Supreme The decision in Ten- (1976)). nard, light this court must claim, Penry assess Nelson’s II, reaffirms U.S. at 121 S.Ct. 1910. Penry I, precluded giv- that a cannot the deliber- the Court held As ing full effect to issues defendant’s future-dangerousness ateness and evidence and no that enough provide a vehicle leaves doubt this were broad its rea- was in at the time express that allowed the standard response moral to the full Nelson’s conviction final.5 The soned became give mitigat- when the 5. Tennard’s conviction became final sider effect to evidence Supreme on his direct culpabil- Court denied certiorari ing to a relevance defendant’s moral Texas, appeal on June Tennard ity .special addition to issues indicates 111 S.Ct. well the “full-effect" standard was therefore, AEDPA, (1991). Under 1991; indeed, above, by place explained duty to de- Court's in Tennard was standard, which is the same standard that whether the Court of Criminal termine Texas I, applied the Court was "dictated unreasonably law that Appeals applied federal Eddings and Lockett." 492 U.S. at clearly June established as of 317, 109 S.Ct. 2934. Nelson’s conviction be- mandate, light AEDPA’s the Tennard years after came final in three Ten- to con- Court's insistence that a be able (1985)).... Thus, on Supreme Court handed down Tennard a State cannot reversing panel of this June bar “the consideration of ... evidence if that had the aforementioned court reasonably the sentencer could find that deny a “constitutional-relevance” test warrants sentence less than death.” petition on a death-row inmate’s COA 494 U.S. at S.Ct. 1227. Penry grounds.

habeas relief Tennard, explained petitioner, who 2562. sen- argued issues Then, this low threshold “[o]nce for rele tencing scheme did not enable the sentenc- met, ‘Eighth vance is Amendment re er to full effect to his evi- quires be able to consider of impaired functioning dence intellectual effect to’ a capital defendant’s score, COA, I.Q. and low was entitled to a mitigating evidence.” Id. at and that the lower courts had erred (quoting Boyde California, applying the Fifth “constitutional- Circuit’s 370, 377-78, relevance” test. Ohio, L.Ed.2d (citing Lockett v. Specifically, excori 586, 2954, 438 U.S. 98 S.Ct. 57 L.Ed.2d 973 invoking ated the Fifth Circuit its own (1978); Oklahoma, Eddings v. 455 U.S. gloss Penry restrictive on the Court’s 104, 869, (1982); 102 S.Ct. 71 L.Ed.2d 1 decision, uniformly applying Penry to I, 302, 2934, 492 U.S. 109 S.Ct. 106 heightened-relevance claims a standard (1989))); L.Ed.2d Payne 256 see also v. that “has no foundation in the decisions of Tennessee, 808, 822, 501 U.S. 111 S.Ct. Tennard, 284, 124 this Court.” (1991) (“We 2597, 115 L.Ed.2d 720 have S.Ct. 2562. The Court then reiterated held that a preclude State cannot the sen- appropriate-relevance standard considering ‘any tencer from relevant miti capital any case—as in other case—is a gating evidence’ that the defendant prof low one: in support fers of a sentence than less directly When we addressed the rele- [VJirtually death ... placed no limits are applicable mitigating vance standard to mitigating capi on the relevant evidence a capital in McKoy cases v. may concerning tal defendant introduce his Carolina, 440-41, North 494 U.S. (quoting Eddings, own circumstances.” 455 (1990), 869)). 114, 102 at U.S. S.Ct. spoke we in the expansive most terms. that, emphasized assessing the “meaning We established evidence, the relevance of a re- relevance is no different in the context viewing weigh court should not the severi- evidence introduced in a evidence, ty sufficiency except or capital sentencing proceeding” than in insofar as evidence of a trivial feature of context, any general other and thus the ‘ character or circum defendant’s evidentiary “any tendency standard —“ unlikely stances of the crime is to have any to make the fact that existence is any tendency mitigate to the defendant’s of consequence to the determination of culpability. Skipper See South Car probable [v. the action more proba- less olina, 1,] 7, 476 n. ble than it would be without evi- S.Ct. ’ (“We 1 do not hold that all applies. dence” L.Ed.2d ”— T.L.O., ability adjust to (quoting Jersey New v. facets of the defendant’s prison life must be treated as relevant Texas, L.Ed.2d nard’s. Nelson 510 U.S. S.Ct. essential features as has the same mitigating. For exam potentially issues relationship between with the state quarrel have no

ple, we mental retardation evi- Penny’s [the defendant] ... that ‘how often ment functioning Impaired irrelevant dence. intellectual a shower’ is will take determination^”).] beyond the im- mitigating dimension sentencing has ability those features However, say that it has on the individual’s pact of feder See panel deliberately. and circumstances act to be “severe” judges deems A reasonable appellate al at 109 S.Ct. 2934. severe”) (let could have “uniquely jury might jurist alone conclude that the could Rather, tendency is incorrect. IQ such a evi- given Tennard’s low well simply whether the evi is question considering aggravating dence a character is of such dence .... dangerousness future a basis for a sentence “might serve ‘as Id. 288-89, 124 ” Skipper, [476 death,’ U.S.] than less on the pronouncement In its most recent 5, 106 S.Ct. 1669. in Smith issue, Tennard, Texas, that, again reiterated L.Ed.2d once concluded: The Court Amendment, a comply Eighth with the has no screening Fifth test Circuit’s must full capital sentencing scheme indeed, and, precedents basis our all of a defendant’s effect to we have with the standard inconsistent per opinion In a curiam issued evidence. capital in the sen Tennard, for relevance adopted reversed shortly after the Court hold that tencing therefore context. We Appeals’ deni- the Texas Court Criminal assessed Tennard’s the Fifth Circuit relief, holding the al of state habeas legal Penry claim under improper supplemental and a special Texas issues Cockrell, v. Miller-El 537 standard. similar to the one nullification instruction Cf. [322, 341, 123 S.Ct. Penry II give in full effect at issue did (2003)] (holding, on certio- mitigating evidence of petitioner’s to the COA, of the denial of rari review (2) (1) disabilities; learning the petitioner’s applied had an incor the Fifth Circuit (3) scores; I.Q. childhood abuse low and merging by improperly rect standard upbringing. and troubled statutory sec requirements of two the that, First, light the Court held tions). Tennard, Ap- of Criminal the Court Tennard, at S.Ct. 542 U.S. on the Fifth peals erred when it relied the decision in Tennard princi- Although test to Circuit’s “constitutional-relevance” rejecting the “constitu- Penry claim. pally focused on dispose petitioner’s standard, the Court also that, tional-relevance” Second, held under may indicated that Tennard’s the Texas Court of Criminal precedent, beyond scope have had relevance special that the erred when it held Appeals issues, jury might that a special and gave and nullification instruction issues giving from effect precluded have been petition- to the mitigating effect sufficient mitigating Court, evi- aspect of Tennard’s re- mitigating evidence. er’s that a COA explained law, dence. The Court viewing “[i]n its case stressed should have issued because Penry 532 U.S. S.Ct. II), (Penry we special relationship between [t]he ‘nullificationinstruction’ con- held a similar IQ evidence issues and Tennard’s low inadequate because it did not left no doubt that full effect was stitutionally appli standard, cable or that this was the stan give allow the consideration [full applied Penry dard that I. The debate circumstances’ and effect to full long has Today, since been over. we make choosing appropriate the defendant’s following clear that we are (quot- at sentence. Court’s directive applying the stan Texas, ing Johnson articulated; i.e., dard it whether there is a 2658, 125 L.Ed.2d 290 reasonable likelihood that is Smith, (O’CONNOR, J., dissenting)).” precluded sues full giving 125 S.Ct. 400. The Smith consideration and full effect to the defen again therefore once reaffirmed that mitigating evidence, including dant’s evi the standard is consideration full full dence that has out relevance effect. scope side the of the special issues because contention that Smith and The State’s speaks culpabili a defendant’s moral Penry inapposite II are to the instant case ty. by” This standard was “dictated in they involved a nullification because Court’s earlier decisions Ed well taken. As ex struction is not we Lockett, I, dings see above, nullification instruction plained and Graham and prob adequate not an solution contrary. Johnson are not to the More I— over, lem the Court identified Court’s most recent decisions namely, jurors that the could not Pen Tennard and reaffirm that Smith clearly standard was established federal ny’s through evidence full effect law at the time Nelson’s conviction became II, issues. Accordingly, final. turn to question we (“[T]he key under Pen- presented in this case' —whether the state ry be able to ‘consider capi court’s determination that the Texas mitigating] defendant’s [a ” tal-sentencing scheme was constitutional in imposing (empha sentence.’ contrary in Nelson’s case was original) (quoting and alteration in Pen sis application clearly or an unreasonable 2934)). ry law as announced established Su Accordingly, inquiry the focus of our is not preme Court. was a nullification instruc whether there tion, procedure, but whether the whatever Clearly Application C. Established was, express allowed Federal Laiv to Nelson’s Case response reasoned moral to the defen Appeals The Texas of Criminal dant’s evidence. See id. And that con- concluded issues were making that the standard for determina to Nelson. Because stitutional tion is there a reasonable likeli whether is there is a likelihood that reasonable precluded that procedure hood precluded giving from full effect was giving full and full consideration evidence, to Nelson’s we hold effect to the defendant’s evi Appeals’ Texas Court Criminal dence. appli- an determination was unreasonable Supreme This review of the relevant clearly an- cation of established law as that, Court case law therefore establishes by nounced Court. the time Nelson’s conviction became Mitigating 1. Nelson’s Evidence clearly

final in law as established that, a announced Court was parties agree punish- at the trial, presented II ment phase full-effect standard. The Nelson (1) the crime that by the nature of of: evidenced mitigating evidence following Dr. Hickman observed (2) abuse; he committed. childhood; substance abusive personality disor- that Nelson’s borderline relationships his brother with troubled growing up a consequence was a der women; a child having had and with not learn to con- home where Nelson did he whom out of wedlock with subjected he was anger trol his and where (5) a relationship; and to have a permitted treatment psychologically abusive of- Nelson Specifically, disorder. mental mother, do told him that “he couldn’t who father, de- testimony of his who fered and that “she didn’t want anything right” detail the emotional abuse great scribed judgment, at the In Dr. Hickman’s him.” at the suffered rejection that Nelson crime, “had committed the Nelson time he growing he was of his mother while hands outburst” and was under psychotic explained father Nelson up. Nelson’s physical of “either a mental or influence boys, and Nelson’s of two was the second resulting physi- from “his form of duress” mother, always girl, had wanted who makeup.” Dr. Hick- psychological cal and birth, refusing to rejected Nelson from that, being in addition to man also stated him, him him or feed “change [or] care for mother, by his “psychologically abused” parents sepa- anything.” After Nelson’s family history which Nelson had “some old, years fourteen rated Nelson was when disregard and abuse women” indicates him, completely abandoned his mother as if he is trained to and that “it is almost refusing to take him with her. leaving and Additionally, Dr. Hickman way.” testimony from presented Nelson also likely substance abuse noted that Nelson’s Hickman, per- psychiatrist who Dr. John the effects of Nelson’s border- exacerbated Nelson. sonally and assessed interviewed disorder, “erup- describing personality line extensively about Dr. Hickman testified by alco- episodes, generally influenced tive personality of borderline symptoms cocaine, primitive all that hol or where disorder, manifest themselves which can out,” “guaran- were impulse comes a “lack of im- “psychotic outburst[s]” sum, Dr. teed to be self-destructive.” Hickman, Dr. According to pulse control.” “has a mo- Hickman observed Nelson disor- personality person borderline hostility, given the combina- anger, rass of into his own illness insight little der has personality, given tion of a borderline through an out- may go “periodically factors, alcohol, cocaine, given given stress very can feelings which become burst of him.” going all to break loose with hell destructive,” violent, though he very even Although Dr. Hickman testified per- normal “75 exhibits behavior can be personality disorder borderline Dr. Hickman noted that of the time. cent” cases, indicated that treated in some he “a experiences lot of particular Nelson in difficult personality borderline disorder is energy anger and impulse and a lot of raw persons to with borderline treat because [insight] no into whatso- ... he has [that] to disorder do not want “admit personality person- borderline as a result of his ever” they are and vulnerable” and often weak ality disorder. undergo therapy. Dr. Hickman refuse to case, that explained borderline it could He further estimated that Nelson’s especially year just “se- to down disorder can be take at least a break personality abandonment, him to “defenses” and convince in eases of maternal Nelson’s vere” treatment; that, after Nel- and, case, upbring- participate in Nelson’s abusive this require “long psychotherapy— engen- mother son would ing rejection by his talking years. to five and I’m about two that was “rage dered a toward women” against That is standard for borderline. And ... Penry; it was inadequate be- emphasized medication.” Dr. Hickman cause it did not allow the to give intensive psychotherapy would full Penry’s effect to mitigating evi- require “two or three times a week with Penry, dence. 492 U.S. at therapist ... a that can with him” in work 2934. Our discussion of the special third proper drug addition to “the medication” issue-—whether the defendant’s conduct and “a environment” strict where Nelson was in response unreasonable to the could “learn internal controls.” Dr. Hick- provocation focused on the inabili- —also that, treatment, man noted even with such ty juror of a express the view that success, guarantee could not he Nelson’s Penry lacked “the moral culpability to treatment, and “if get he doesn’t I think be sentenced to death” in answering the predict dangerousness.” we can 324-25, question. 109 S.Ct. 2934. point Penry The is clear: A death Special Applied 2. The Issues as sentence resulting application Mitigating Nelson’s Evidence the Texas special issues cannot up- be matter, As a threshold the State jurors held unless the are able consid- Penry contends that progeny apply fully er mitigating defendant’s evi- only very to a narrow set of cases in which Accord, dence. id. at mitigating “double-edged,” evidence is (SCALIA, J., concurring in part i.e., has both aggravating (The dissenting part) today effect, future-dangerousness spe and the holds that “the constitutionality turns on gives cial issue only aggrava the evidence [special] whether questions allow Thus, State, ting according effect. factors not to be consid- Penry analysis in this case is not neces ..., ered given but also to be effect sary. disagree. We possible all ways, including ways that applicability has never limited the of Pen the questions permit”). do not ry- explicitly implicitly cases —either —to See 509 U.S. at involving “double-edged” mitigating evi (O’Connor, J., Indeed, dissenting). I, dence. In the Court’s observa Rehnquist Chief Justice dissented from Penry’s tion that evidence of mental illness the Court’s decision in arguing Tennard “two-edged” just many was was one of that Tennard’s evidence was not “two- reasons that the issues were inade Tennard, edged.” quate Penry’s vehicles evidence full (“In contrary S.Ct. 2562 either case— effect; the determin Penry I—the evidence given could miti- ing factor. See gating the second issue. (listing “two-edged S.Ct. 2934 short, intelligence low is not the same sword” nature of Penry’s evidence as one as mental retardation and does not neces- of a number of reasons the future- sarily create the ‘two-edged dangerousness give Penry’s issue could not ”). majority sword.’ A of the Court de- effect). evidence full mitigating Justice accept clined to argument Tennard explains O’Connor’s dissent in Johnson and, therefore, accept we cannot it here. placing weight too much on the description Penry’s evidence as Further, the Court has indicated that “two-edged” Penry mischaracterizes the Penry applies potentially at least —or reasoning: Court’s apply involving could cases evidence —in See, Smith, special double-edged. e.g., The second issue was not inade- that is not 37, 125 400, 160

quate only because evidence worked 543 U.S. L.Ed.2d 303 a concerning that evidence de (stating court’s denial of habe- (reversing the state history could ... special bear[s] issues fendant’s “emotional relief because mitigating justice evidence of im directly full effect to on the fundamental Ten upbringing); I.Q. and troubled a capital punishment”). of low Because posing nard, 542 U.S. major thrust of of a evidence petition (holding that habeas childhood disorder and an abusive mental Penry on his entitled to COA er was afflictions could reduce an is that such of low mitigating evidence claim based on it “reason culpability, offender’s moral functioning). I.Q. impaired intellectual likely” juror that a would not have ably short, urges this court to In the State give full effect to his “rea been able to rea component one wrench judgment” regarding soned moral I out of context and use soning Penry of Nelson’s evi mitigating impact full screening test in our as dispositive aas de through narrowly worded dence effect, Penry of claims. sessment See, e.g., Penry instruction. liberateness develop court to another asks this State 1910; II, at Pen 532 U.S. similar to gloss “restrictive I, at 109 S.Ct. 2934. ry test “constitutional-relevance” Court has Significantly, Tennard, down in Tennard. Court struck issue never held that the deliberateness at S.Ct. 2562. The Court 542 U.S. full enough alone is broad has never used the consideration wheth that also bears on single- double-edged as a er evidence is culpability; moral indeed defendant’s urges us screening issue test as the State opinion in Smith the Court’s most recent do; and, strong admo given the Court’s There, contrary. suggests v. Texas Tennard, so. nition in we decline to do the Court characterized Smith’s evidence Consequently, we turn now to the State’s as follows: evi argument alternative Nelson’s (1) diagnosed poten- he had been with adequately considered dence could be tially organic learning disabilities and through the two issues. (2) early speech handicaps age; at an he IQ IQ a full had a verbal score of 75 and Special a. Deliberateness Issue and, result, spe- of 78 as a had been Nelson’s throughout most of cial education classes personality disorder and aban borderline (3) school; IQ despite his low his time mother had relevance donment his disabilities, learning his behavior the deliberateness beyond scope (4) his fa- exemplary; school was often ob issue. As the drug addict who was involved ther was I, juror Pemy a reasonable served violence and other criminal gang that, could have concluded while activities, regularly money stole deliberate, Nelson was less murder was family support drug members bor morally culpable as a result addiction; he was 19 when disorder and abusive personality derline committed the crime. he such childhood than a murderer without Smith, 400. Con- upbringing a mental illness and similar evidence, nature of this sidering the might have been. See II, that, “just as in 2934; Court noted Skip see also tied Carolina, 1, 13-14, proof burden of on the State was per v. South and fu- findings law to of deliberateness little, any- that had if (Powell, J., dangerousness ture concurring judgment) mitigation thing evidence a borderline thing, to do with the wants to do is admit presented.” they vulnerable,” petitioner are weak and and thus Likewise, Nelson’s evi- patients borderline often resist treatment. beyond Indeed, dence had relevance the deliber- closing, its own the State em- on special ateness issue insofar as it bore phasized strong possibility that Nel- the crime. culpability his moral Con- son would not receive the treatment he although jury may have sequently, keep needed to his borderline personality give partial effect to this been able check, disorder in if and even he did re- through the deliberateness spe- evidence treatment, guar- ceive such there were no issue, cial there is a reasonable likelihood therapy antees that would be effec- full give that it was unable to effect to this prevent tive -to future violence: evidence, beyond it because had relevance said, if, if, if, Dr. Hickman if he is im- deliberately. whether Nelson acted prisoned long enough, undergoes if he psychotherapy, if he chooses to take his Future-Dangerousness Special b. Issue medication, if dope he leaves Likewise, future-dangerousness alone, maybe, maybe alcohol then he give cannot Nelson’s issue evi- danger. Spe- won’t be a future Look at dence full effect. The Two, cial Issue Number and gen- ladies conflicting heard evidence about tlemen. There is not an next asterisk treatability of person- Nelson’s borderline that, something there is not referring ality efficacy disorder and about the of if, if, if, you says down that here if. We any possible According treatment. to the now, right look at the defendant testimony, expert assuming even that [said], right yes, now even their witness personality Nelson’s borderline disorder may a danger. he be treatable, depend were success would trial, evidence, expert testimony Based on the many factors. Based on this might have concluded Nelson easily could have concluded treated, therefore, could it could unlikely it was that Nelson would suc- given some effect to this cessfully complete treatment. of Dr. evidence within the context the future- expert, Grigson,

State’s testified dangerousness special issue. But if the there was insufficient information to personality of concluded that the condition diagnosis make antisocial disorder, improba- that treatment was repeatedly emphasized but treatable or ble, argued, “in it would necessar- opinion question there is no as the State [his] ily “yes” whatsoever that will commit fu- have to answer [Nelson] contrast, II, issue. as in I and it danger.” ture acts Nel- Just Hickman, likely juror considering that a Nelson’s expert, diagnosed son’s Dr. disorder personality personality Nelson with borderline disor- borderline that, have felt that he could der. He further testified with treat- would incarceration, via the consisting possible ment two to one juror years future-dangerousness issue: Such a psychotherapy five of intensive two week, medication, only ag- to three times a and would have seen the evidence as abuse, gravating, borderline refraining drug and alcohol because Nelson’s difficulty may personality disorder and the continuing Nelson not be threat. if the likelihood that Nel- opined treating

He that Nelson did not receive increase treatment, violently again. act Conse- pose danger he to so- son will out would no vehicle to ciety. explained quently, He also that “the last there would be youth. uniquely transient nature of See of border to his evidence mitigating effect Johnson, disorder, i.e., way at 113 S.Ct. 2658 no U.S. personality line (“The youth that even of as a its conclusion relevance express dangerous signa- in the the fact that the likely to be factor derives from though he is transient; him un future, youth makes are as qualities his mental illness ture of I, mature, penalty. impetuousness and worthy of the death individuals Cf. (“[A] youn- rea may at that dominate recklessness have believed that juror could well .... is years [T]here sonable can subside ger expressing no vehicle for there was of future ample room in the assessment not deserve to be view that did juror for a to take account dangerousness upon mitigat sentenced to death based youth of as a of the difficulties evidence”). And, similar to Pen- ing determination.”); also sentencing force I, likely precluded ry Eddings, see also future-dangerousness is interpreting the (“[Yjouth than a chrono- is more major way gave in a that effect to sue condition of logical fact. It is a time and evidence, that it mitigating thrust of the may person suscepti- life be most when culpability moral tends to lessen Nelson’s psychological to influence and to dam- ble 492 U.S. at for the crime. See Court, sense, In age.”). 322-24, 109 S.Ct. 2934. has endorsed the extension of never to treatable mental Johnson and Graham dissenting of opinions State and the

The illness, youth generis, has treated as sui Judge argue Owen Judge Chief Jones a condition that is certain to because is more the evidence issue here contrast, acknowledged by pass.6 In youth to the evidence of comparable witness, there was no expert Nelson’s own Specifical- and Graham. issue Johnson person- guarantee Nelson’s borderline that, ly, they contend because borderline time. ality disorder would diminish over disorder can be a “transient” personality that, although Dr. border- Hickman noted youth, could believe condition like treatable, personality line disorder is suc- dangerous in that Nelson would be less express- and is cess is no means certain future, full thereby giving that, therapy ly conditioned on intensive disagree. to the evidence. This effect We conclude, juror prison sys- the Texas could erroneously analogizes evidence argument fact, Dr. unlikely provide. tem is youth of and evidence of mental illness. that, testimony trial indicated Hickman’s held that The Johnson severity per- of of borderline because future-dangerousness issue could sonality patients’ common re- of disorder mitigating aspects to both therapy, successful treatment violent behav- sistance youth of future —likelihood exception rather than the rule. culpability ior and moral is often —due underdeveloped responsibility!], generis youth death sense of sui nature of in the impetuous penalty perhaps ... often result in and ill- which] context is best evidenced decisions”; categorical holding increased Supreme Court's considered actions Simmons, negative "vulnerabfility] susceptibility] to Roper (2005), including pressures, the Constitu- influences outside persons peer pressure”; character of a prohibits who and "that the tion the execution of age juvenile eighteen years at the time is not as well formed as were under juveniles are personality adult. The traits of their crime. See id. at 125 S.Ct. 1183 fixed”) transitory, (citing unique less (noting characteristics of more that three 2658; Eddings, 455 youth mitigate juveniles’ culpability for moral 869). maturity lack of and an U.S. at ''[a] certain behavior: that it ‘might such a character serve as a jury considering evidence Unlike ” therefore, death,’ a reasonable likelihood for a sentence less than youth, basis considering Nelson’s that a existed clearly which was established federal law personal- of borderline mitigating evidence at the time that Nelson’s conviction be- have felt foreclosed ity disorder would Tennard, final. came effect to Nel- giving mitigating full (quoting Skipper, at the fu- of his disorder via son’s evidence 1669) added). (emphasis Thus, based on ture-dangerousness issue. contrast, approach, the alternative Penry I and principles the announced dissenting opinions upon which the of spe- future-dangerousness the progeny, its Judge Judge Chief and Owen base Jones issue, like the deliberateness cial their issue, conclusions the Texas Court of constitutionally insuffi- provided a jury to its express Appeals unreasonably ap- to allow a Criminal did not cient vehicle full response give and ef- law, reasoned moral clearly established federal would ply evidence. The mitigating fect to Nelson’s us, sitting appellate as a federal require holding Appeals’s of Criminal Texas Court court, weigh pre- habeas the evidence contrary applica- is an unreasonable to the sentencing in a manner that the sented federal law as clearly tion of established Tennard held was an Supreme Court Supreme Court. announced application clearly unreasonable of estab- disagree- matter of simply This not a far lished federal law least back as as the state court’s conclusion ment with 1991. See id. 286-87, 124 S.Ct. 2562. consider and effect could case, Tennard reached Like Nelson’s through Nelson’s Supreme Court on federal habeas review are special-issues sentencing scheme. We by the AEDPA stan- governed and was mindful that under AEDPA a federal court above, clearly dard. As noted we measure simply relief be- may grant not habeas pur- federal law for AEDPA established disagrees cause it with the state court’s poses as of the date that the defendant’s issue; may grant of an relief resolution conviction final. While Tennard’s became if court’s decision was con- only the state final in Nelson’s conviction became trary application to or an unreasonable conviction did not become final until 1994. clearly Supreme prece- established Therefore, supra See princi- note 4. 2254(d)(1). Indeed, dent. See 28 U.S.C. § Tennard ples Judge Jones’s dissent invokes this Chief clearly established in 1991 held had been standard, asserting approach that our clearly by the certainly were established improperly future-dangerousness issue final time that conviction became Nelson’s string hypotheticals upon “relies Judge Athough in 1994. Chief Jones adopts violation” and create [a] correctly recite the AEDPA Judge Owen theory “attenuated delibera- they dissenting opinions, in their standard I far beyond tions extends [that] accept fail to that Tennard —which simply Judge intended boundaries.” Chief propositions for the re- stood see also 19; Judge at 21 n. Jones’s Dissent may reweigh or reassess viewing court Dissent. But rather than extend- Owen’s presented at sen- I ing any reach of other case tencing, must be able AEDPA standard of violation of the impact of that evi- review, merely follows the approach our culpability defendant’s moral dence on the directive to longstanding set forth “whether the evidence is of via the issues—also determine clearly actually that Nelson suffered from border- law that was established federal personality line disorder. To conclude of Nelson’s case. purposes that the mental illness at issue was treata- Specifically, dissenting opinions multiple face these possibili- ble Judge Owen run Judge Chief Jones ties, dissenting opinions Judge of Chief by assuming that afoul of Tennard Judge Owen reassess and re- Jones jury in Nelson’s case found that Nelson’s presented at weigh the evidence sentenc- disorder was treata- personality borderline we, though sitting ing, even federal ble, that the Texas of and Court Criminal court, way have no of appellate habeas therefore not have acted Appeals would knowing why jury determined that the in unreasonably treating it as akin to the danger.7 Nelson was future mitigating youth evidence of at issue in However, in Weighing and Johnson. we know the evidence this manner Graham only jury express Supreme from the record that the deter- violates the ad- that danger mined that Nelson was future monition Tennard we not substitute hearing conflicting expert testimony interpretation after our own of the evidence for jury strength suffered from that of the or the of about whether he borderline assess so, and, personality mitigating presented except disorder if whether it the evidence Despite purportedly could be treated. the “insofar as evidence of a trivial of feature reading definitive of the record contained the defendant’s character or the circum- dissent, Judge unlikely any in Chief Jones’s we cannot of the is stances crime to have precise tendency mitigate certain of the for the culpa- be reasons the defendant’s Tennard, jury’s bility.” future-dangerousness determination.

Instead, jury Supreme we that the could have the know Just as Court any arrived its conclusion for made no determination as to (1) following jury actually reasons: the believed whether the believed that per- Penry mentally that Nelson suffered borderline was retarded based on the evidence, sonality conflicting may disorder but that the disorder was trial we not con- treatable; not independent believed that duct an review of the conflict- personali- ing Nelson suffered from borderline evidence in this ease to amake deter- ty that mination jury actually disorder was treatable but as to whether the some other factor rendered Nelson a fu- believed that Nelson’s mental illness was short, Tennard, danger; In ture did not believe treatable. under which Johnson, issue; Compare Supreme future-dangerousness undisput- in which the singled youth, opposed chronological age out as to other ed fact of the defendant’s contrast, transitory, enough. approach conditions could because under the ephemeral up dissenting opinions nature is bound in its miti- favored of Chief case, gating impact juror Judge Judge such that a could not Jones and Owen in this youth reasonably presented mitigating assess factor when evidence of a illness, taking aspect possibly appellate without into account this of treatable mental an Johnson, inquiry transience. See U.S. at habeas court must conduct such (emphasizing impact jury’s findings weigh S.Ct. 2658 into the the evi- youth on the defendant’s inde- dence to conduct "is not determine whether illness is reason, pendent personal culpa- Perhaps very of an assessment of treatable. for this Court, bility”). spoke youth quality Because this which transient is so about very specific subsumed within the relevance of terms in has never ex- youth, reasoning any inquire the Court other did not whether the tended Johnsons miti- jury might likely gating including possibly have found that Johnson was treatable evidence— grew might up as he it held mature before mental illness—that transient youth through could full effect to characteristics. Court,” Judge Jones’s Dis preme Chief clearly law this established clarified approach firmly sent at 346 n. our 1991, may graft not a treata- we area as of precedent grounded view of the on our bility test based the AEDPA standard of consistent with onto the low rele- evidence strength of the upon review. The alternative dissenting opinions as the threshold vance Judge dissenting opinions of Chief Jones Judge Owen Judge Jones of Chief rely to affirm the state Judge Owen may the Texas Court and neither propose, court’s denial of habeas relief Rather, Appeals. of Criminal the trial record for case—that we scour jury’s may regarding ask question we our treatability and substitute interpretation for that of interpretation of the evidence whether the “simply at trial is presented incorrect, jury’s merely but is —is a character evidence is of such application clearly es an unreasonable less a basis for a sentence ‘might serve as ” by the tablished federal law as announced S.Ct. 2562 than death.’ Tennard, 542 U.S. at Supreme Court. See 5, at 106 S.Ct. Skipper, 476 U.S. (quoting Smith, 288-89, 124 2562; also 543 S.Ct. see added). 1669) (emphasis II, 38, 400; Penny 532 at 125 S.Ct. U.S. it Further, Court has made Supreme the I, 1910; 803, at 121 S.Ct. 492 U.S. (both in issued Boyde Johnson clear 2934; 323, Skipper, at U.S. S.Ct. final) became conviction before Nelson’s U.S. at S.Ct. threshold is the low relevance that once from the This case is therefore different satisfied, into or sec- inquiring rather than recent decision Brown Supreme Court’s jury’s interpretation the guessing ond Payton, evidence, must deter- all court the trial (2005), Judge 161 L.Ed.2d likelihood whether reasonable mine is dissenting opin discusses her Clement the instruc- jury applied that the exists re Payton, Supreme In the Court ion. it from precluded that in a manner tions grant of habeas versed the Ninth Circuit’s to the defendant’s giving effect chal petitioner to a death-row who relief it to the defendant’s pertains evidence as constitutionality of California’s lenged the case, giv- In culpability. the instant moral (k)” instruction, jury concluding “factor testimony the conflicting regarding en the proper did not that the Ninth Circuit illness, treatability of Nelson’s mental decision. the state court’s deference to likelihood certainly is a reasonable there held that was “[i]t the Court Specifically, giving jury precluded felt from that the court to for the state not unreasonable of the evidence on impact full to the likely jury most be that determine via the future- culpability moral Nelson’s mitigation, the evidence lieved found that because it dangerousness issue (k) the reach while within factor treated. See illness could not be Nelson’s instruction, simply too insubstantial was 367, 113 S.Ct. 2658 509 U.S. at imposing arguments to overcome Boyde “reasonable (explaining added). (emphasis penalty.” Id. the death require does not likelihood standard that the held Payton, In the state court likely it was more prove that the defendant reli the defendant’s evidence of from jury prevented that the was than not the reach conversion fell within gious evidence”). giving effect to the directing catch-all instruction “ circumstance ‘[a]ny other Therefore, “extending] rather than consider crime of the gravity bound- which extenuates beyond its intended Penny far for the legal not a excuse though even aries, instructions from Su- without ” crime,’ although prosecutor argued aspect of that evidence Smith, it could not consider this through the two issues. See Payton, evidence. at 400; Tennard, 543 U.S. at (alteration in original) (quoting S.Ct. 1432 288-89, 2562; at (West 1988)). § CaLPenal Code Ann. 190.3 II, 1910; reversing the Ninth Circuit’s determi- 492 U.S. at 109 S.Ct. 2934. More- deny- nation that the state court erred in over, precludes a reviewing Tennard court relief, Supreme ing habeas Court em- reweighing presented the evidence phasized holding state court’s trial to alleged determine whether the mit- interpretation its prior reasonable de- igating circumstance is treatable in Boyde, cision Tennard, therefore transient. in which the Court Thus, unlike the (k) upheld validity of the factor in- in Payton, state court’s determination struction in similar circumstances. See where Boyde had Payton, 544 U.S. at 125 S.Ct. 1432 previously challenged held that the Cali- (“As the California recog- fornia instruction enough was broad to al- nized, Boyde, like in for the to have low the impact to consider the Payton’s believed it could not consider mit- mitigating evidence on the defendant’s evidence, igation it would have had to be- culpability, moral it was unreasonable for penalty phase lieve that the served virtual- the Texas Court of Appeals Criminal all.”). ly purpose Accordingly, no this case to conclude that mitigat- Nelson’s Ninth had Circuit deviated from the defer- ing evidence was within the reach of the ential AEDPA it standard when reversed jury through issues, the narrow the state court’s determination. given clearly the law the established Nevertheless, Judge Clement’s dissent- in Supreme Penry I and proge- its ing opinion, Payton which relies on to ny. that conclude this court should defer to the Finally, support argument of its that Appeals’s Court of Criminal denial potentially evidence of a treatable mental relief, of recognize habeas fails to that analyzed similarly disorder should be to standard is demanding “[t]he [AEDPA] youth, the Court’s consideration of the insatiable; but not ... ‘[d]eference does ” State relies on Fifth Circuit case law that preclude definition relief.’ Mil- erroneously interpreted Penry has as re- Dretke, ler-El v. 545 U.S. 125 S.Ct. quiring that evidence be (2005) (third 2325, 162 L.Ed.2d 196 given only Specifically, “some effect.” it alteration in original) (quoting Miller-El v. opinion relies this court’s Lucas v. Cockrell, (5th Cir.1998), 132 F.3d 1069 (2003)). In contrast to panel which the held that the special is- the circumstances at in Payton, issue Nel- gave constitutionally sues sufficient effect clearly son’s has rele- to Lucas’s evidence of schizophrenia cou- beyond vance issues deliberateness pled upbringing. with a troubled dangerousness and future See id. under (“[The] prospect and If of medical treat- progeny. its concluded placed that ment likely Nelson was to his mental dangerous illness and abusive within future based on his mental disorder childhood ‘the childhood, po- abusive but also effective reach of the sentenced concluded as that this him respect evidence rendered less mor- tential factor with to ally culpable, issue, is, way it had no to effect second could whether, “constitutionally sentence” is appropriate in an institution- have considered inadequate” proge- that Lucas under I and its probability setting, al (internal society was danger ny) quotation a future to marks and citations posed as omitted). imposition to merit great not so as sentence.”)(cid:127) reaching this con-

death Mitigation Nelson’s clusion, Supreme Sufficiency Lucas cited the Evidence decisions Johnson Graham has “Penry’s application

proposition reject argument We also Nel- to that narrow class since been limited personality son’s evidence of borderline mitigat- petitioner’s in which the situations is insufficient to warrant relief disorder beyond jury’s ing placed evidence was Penry. based on Court has reach,” that the evidence effective recognized that jury’s effective that case was within gravity place has a in the relevance anal- reach, given could have because ysis, of a trivial insofar as evidence fea- explained at 1082. As partial effect. Id- character or the ture of the defendant’s above, clearly has held unlikely circumstances of the crime is Thus, con- is full effect. the standard tendency any mitigate the defen- meth- partial-effect reliance on the tinued culpability. Skipper dant’s See South [v. erroneous, because that stan- odology is Carolina, 1,] 7, 2,n. account, Penry I to take into dard fails (“We do not hold that jury’s inability progeny require, ability all facets of the defendant’s to a defendant’s give mitigating adjust prison life be treated as must future-danger- via the culpability moral For potentially mitigating. relevant and Smith, ousness issue. See example, quarrel we have no with the Tennard, 400; at 288- .. that ‘how often de- [the statement II, 2562; will take a shower’ is irrelevant fendant] 1910; Penry determination[.”).]. sentencing Moreover, and most 109 S.Ct. 2934. Tennard, 286-87, at 124 542 U.S. S.Ct. requires AEDPA us to deter- importantly, discussing 2562. The Tennard Court was the state court unreason- mine whether worth in probative that had no “clearly federal ably applied established jury’s consideration of a defendant’s Court,” by Supreme law announced not that culpability, moral the Fifth Circuit. 28 U.S.C. jury may choose to believe or disbelieve. 2254(d)(1). to the extent Accordingly, § contrast, strength of Nelson’s evi- a applied that this court’s cases have less- disorder personality dence of borderline Penry claims than-full-effeet standard to to the credi- “goes childhood abusive i.e., past the extent that past, in the to evidence, mitigation bility [Nelson’s] of jury’s to account for the abili- cases failed judged by which be should impact mitigat- ty effect to the instruc- answering supplemental effective culpa- a defendant’s moral ing evidence on mitigation evidence.” addressing tions issues, those cases bility via the (5th Cockrell, 318, 298 F.3d 322 Blue v. interpretation on an erroneous were based Cir.2002), grounds on other Smith, abrogated precedent. See Supreme 2562, Tennard, 274, 124 159 542 U.S. S.Ct. 38, (holding that at 125 S.Ct. 543 U.S. Further, that any argument L.Ed.2d 384. “give that sentencing a scheme fails full Pen- dispose Nelson’s this court should effect to consideration full is that the evidence ry grounds claim on choosing the defendant’s circumstances precisely type insufficient endorses argue applicability of harmless error judicial evidence-weighing that the Court during original before this court Nelson’s expressly against: warned Tennard appeal, habeas before the review, on certiorari or before this court say that those features and

[T]o initially when we reconsidered Nelson’s panel that a of federal circumstances appeal habeas in light on remand of Ten- appellate judges deems to be “severe” (let severe”) It nard. was not until a “uniquely concurring panel alone could have Rather, member in the most tendency panel such a is incorrect. recent Nelson question simply opinion suggested is whether the evi that might Brecht applicable dence of such a character argued is the State harmless for a “might serve ‘as basis sentence error its en banc brief. The State’s ” death,’ Skipper, less than argue point [476 U.S.] failure to this prior to now is 5, 106 S.Ct. 1669. understandable because Court has never a harmless-error Tennard, S.Ct. analysis Penry to a claim given any prescribe 2562. Nowhere does Tennard indication that might apply harmless error (or for) a balancing even allow test long post line of -Furman cases ad weighs strength evi- dressing jury’s ability full effect against aggravating dence that of the evi- capital defendant’s mitigating evi reasoning dence. Such runs afoul of the Tennard, dence. generally See 542 U.S. low relevance standard that the Court em- 274, 384; S.Ct. Tennard, L.Ed.2d Pen i.e., phasized any tendency II, 782, ry 532 U.S. mitigate culpability, the defendant’s 9; L.Ed.2d 492 U.S. perilously comes to applying close 256; 106 L.Ed.2d heightened-relevance Eddings, 455 test similar to the 1; one that the Court struck down in Ten- Lockett, Accordingly, reject nard. we ar- also Indeed,

gument. L.Ed.2d II Court applied the Brecht harmless-error test to Harmless Error A Penry’s prosecution’s claim that the use of Finally, reject we ar State’s psychiatrist’s report violated his Fifth gument any Penry error in this case II, rights, Amendment see subject analysis is to harmless-error under 1910. Conspicuously ab Abrahamson, Brecht v. 622- sent from the discussion regarding Penry’s (1993), Eighth claim, however, Amendment any applies to error that is “amenable to mention of the harmless-error test in ei analysis ‘may harmless-error because it majority ther the dissenting opin the ... quantitatively be assessed in con the ions. presented text of other evidence in order to Implicit determine effect it had on in the [the the Court’s failure to ” (omis apply trial].’ 113 S.Ct. 1710 harmless error in cases where the sion and in original) (quoting jury precluded alteration has giving been from Fulminante, 279, 309, Arizona v. to a defendant’s evidence is the (1991)). 113 recognition Penry that a deprives error The State advances jury this harmless-error the of a for expressing “vehicle its theory for very first time on en response banc ‘reasoned moral to the defen ” rehearing in a character, crime,’ discussion that consumes background, dant’s “ brief; less than a page precludes of its it did not which making it from ‘a reli- (“[T]o say only that ap that death is the ” those features determination able II, Penry panel that a U.S. circumstances of federal sentence.’ propriate (let appellate judges deems to be ‘severe’ (quoting 121 S.Ct. 1910 at severe’) 2934) (inter alone a 328, 319, 109 ‘uniquely could have such S.Ct. omitted) tendency serve as less than [to basis (emphasis quotation nal marks Rather, added). question is incorrect. moral judgment death] This reasoned simply is whether the evidence is of such a in jury determining make that must character ‘might that it serve “as a basis appropriate death sentence whether is ’”) for a than (quot- sentence less death” judgments from fact-bound differs those 1669); ing Skipper, response issues. It made to the Louisiana, Sullivan v. U.S. at issue in also differs from those cases cf. 124 L.Ed.2d 182

volving jury defective instructions which (1993) (refusing apply harmless error has harmless-error review the Court found jury improperly where instructed Neder v. United appropriate. to be Cf. proof guilt/inno- on the burden of States, 1, 8-15, 119 S.Ct. phase, that noting cence “the essential (1999) (applying 144 L.Ed.2d 35 harmless- ‘beyond connection to a a reasonable jury review instructions error where finding made doubt’ factual cannot be offense, an of the reason omitted element where error consists of a the instructional that, given presented, the ing the evidence proof, misdescription of burden of would the same had the verdict have been jury’s A findings. which vitiates all the instructed); Johnson properly been pure can reviewing engage court States, 468-69, 117 v. United U.S. speculation view of what a reasonable —its (apply And it does would done. when ing harmless-error review where the that, wrong entity judge[s] ‘the the defen- materiality omitted the ele instructions Clark, ”) Rose v. (quoting dant guilty’ perjury charge, noting ment did correction in the error not warrant (1986)). “overwhelming” “uncon- light of Therefore, supporting given troverted” evidence materiali premise appellate refusal allow an court to sub- ty). Given that the entire judgment for a moral possibility line of rests on the stitute its own moral cases judgment was unable jury’s response moral reasoned case, make in we to do so an decline might have different been now.8 it issues had been able swers fully effect to the consider III. CONCLUSION evidence, would defendant’s At the that Nelson’s conviction be- wholly appellate for time inappropriate effect, final, clearly

court, came Court had substitute its own moral inquiry the relevant jury’s cases. established judgment these Tennard, likelihood See whether there was reasonable tence, Coleman, might the lower found State's on Calderon v. court 8. The reliance jury and it from distracted 142 L.Ed.2d 521 misled (1998), presented. argument mitigating Coleman support in of its involving applicable comparable to is is is not at all cases Brecht harmless-error test violations, jury precluded jury where the misplaced. Coleman involved instruc- response giving gave from its reasoned moral tion that inaccurate information mitigating governor’s evidence. power to commute a sen- defendant's on the result, interpret that, would the Texas in concurring concluding special precluded in a manner that under the in issues Court’s decisions Lynaugh, fully considering it full giving from I”) (“Penry effect to all the defendant’s cases, and other because Nelson had intro reasons, foregoing evidence. For the we duced relevant mitigating evidence of im conclude that there is a reasonable likeli- disease, pairment by mental childhood precluded hood was abuse, and chemical dependen abuse and giving full consideration and full effect to cy, pre-1991 the State’s use of the Texas Nelson’s evidence via the Texas statutory scheme to sentence him to death issues; therefore the state court’s rights. violated his constitutional Howev determination that the issues were er, I concluded that under the harmless applied constitutional as to Nelson’s case Abrahamson, error test of Brecht v. Accordingly, RE- unreasonable. we VERSE the district court’s denial habe- (1993), the constitutional violation was as relief and REMAND with instructions error. Judge harmless Stewart also con grant corpus. the writ of habeas result, curred join but he did not DENNIS, opinion assign either Judge, Concurring Circuit reasons. Judgment Assigning Additional rehearing banc, After the case en Reasons: majority of this court has now decided that application pre-1991 Texas stat-

In this case we must decide whether utory capital sentencing scheme to Nel- petitioner, Billy Ray Nelson, was sen- son’s case Eighth violated the Amendment tenced to death in Eighth violation of the and that this violation disregard- cannot be Amendment because the was not in- join ed as harmless I fully error. structed that could consider and majority’s agree conclusions and substan- effect to his mitigating decid- tially with its reasons. The majority’s ing between the penalty death or a lesser analysis of I Nelson’s claim is simi- imprisonment. sentence of life The three- lar to that set forth in my separate panel judge panel this court concluded that opinions here and other cases.1 Accord- penalty affirmed, Nelson’s death must be ingly, join majority’s decision and but its members did agree upon assign additional reasons hereafter. majority opinion. rationale or Judge Chief opinion Jones issued an concluding that issue, On the harmless error I acknowl- pre-1991 capital sentencing stat- edge my panel mistake at the level ute as to Nelson’s evi- undertaking a harmless analysis error dence and Eighth case did not violate the the constitutional defect in this Af- ease. Amendment and affirming the district considering parties’ ter briefs and con- judgment court’s denying Nelson’s federal ducting my research, own additional I now corpus petition. habeas I filed an opinion see that the State waived its harmless See, Dretke, e.g., senting); Cole v. 443 F.3d 442- Penry v. 215 F.3d (5th Cir.2006) (Dennis, J., dissenting); (5th J., Nel- Cir.2000) (Dennis, dissenting). 513-16 Dretke, (5th son v. 442 F.3d 288-309 grateful my I am law clerks who worked J., Cir.2006) (Dennis, concurring judg- in the opinions especially with me on these ment); Cockrell, Robertson v. 325 F.3d three, Jefferson, Kneupper, Kevin Jelani (5th (en Cir.2003) banc) (Dennis, J., 274-80 Meissner, Bradley helped preparing who Cockrell, dissenting); Tennard v. 284 F.3d concurring opinion. this en banc (5th (Dennis, J., Cir.2002) 597-604 dis-

317 major, majority but several endur prior opinion, to urging argument error emerged from ing principles the nevertheless and constitu- rehearing this en banc First, sentencing cannot make deficiency capital these cases. states the tional imposition penalty mandatory this case was the death of mechanism defect, Woodson, constitutional any not a mere from class of crimes. See structural error, 302-05, 2978; Roberts, and cannot be sub- therefore 428 U.S. at 96 S.Ct. trial analysis.2 3001; The jected to harmless error 96 see 428 U.S. at S.Ct. also Shuman, 66, 74, are these set forth conclusions 483 107 reasons Sumner v. U.S. (1987). Second, opinion. 2716, of this final section 97 L.Ed.2d 56 S.Ct. limit penalty state death statutes must and Requirement Eighth 1. Amendment The impose guide the sentencer’s discretion Sentencing Obliges Individualized Of prevent penalty death order Texas, States, To Enable Including See, capricious application. arbitrary and Ap- To Select The Capital Sentencers Texas, 350, 360, v. U.S. e.g., Johnson 509 Full Consider- Penalty propriate (“In After 2658, 125 290 113 S.Ct. L.Ed.2d Mitigation The ation Of Defendant’s cases, joint opinion controlling the five Evidence. principle of three reaffirmed the Justices must be suit of Furman ‘discretion recognition Court’s Supreme ably and limited to minimize regarding indi- directed so as requirements constitutional 1976, wholly arbitrary capricious the risk and when sentencing began vidualized ”) 189, Gregg, major (quoting action.’ 428 U.S. deci- issued a series the Court 2909). Third, sentenc constitutionality capital of 96 S.Ct. concerning the sions er must allowed consider altered funda- be penalty that the death unique of the juris- effect to the circumstances penalty death Court’s mentals particular with individual defendant and prudence.3 These cases dealt death appropriate determining crime when penalty enacted various states statutes Shuman, See, e.g., sentence. Court’s deci- response (“In strik 107 2716 the two cases Georgia, v. 408 S.Ct. sion in Furman U.S. (1972), 2726, mandatory unconstitutional ing down as 92 33 L.Ed.2d 346 S.Ct. statutes, opinions capital-sentencing penal- the death invalidated previously had that one of fatal flaws those ty. produced of the cases stressed None five sions, decision, original my view previous I have returned to my dissent respect here type the same conclusion violation reached of constitutional i.e., case, defect, Penry I that it violation in error. I have a structural not a trial defect, error, not a trial was a structural my reasons for error set forth the subjected to could not harmless therefore correction in the last section of need for its analysis. v. 248 See error Hernandez dealing harmless error opinion with the (Dennis, J., 344, Cir.2001) (5th 378-81 F.3d question. Later, however, dissenting). I became dis- by my imperfect of that view under- suaded 153, Georgia, 96 S.Ct. Gregg See v. 428 U.S. standing relationship Su- between the 2909, (1976); v. Flori- 49 L.Ed.2d Proffitt Texas, in Johnson v. preme Court's decisions 2960, da, 49 L.Ed.2d 428 U.S. S.Ct. 2658, 125 L.Ed.2d Texas, (1976); v. Jurek (1993), Boyde California, 494 U.S. (1976); 49 L.Ed.2d 929 Woodson (1990), Cal- 108 L.Ed.2d Carolina, 428 North Coleman, deron v. (1976); v. Loui- Roberts (1998), siana, jurispru- error structural defect/harmless study and a After additional better dence. understanding of Court deci- these 318 procedures

sentencing was their failure to er must at least be enabled (although it permit presentation circum- instructed) (1) need not be to make an stances for the consideration of the sen- individualized assessment the defen- tencing authority.”)- underlying These culpability dant’s moral and deathworthi- principles guide have continued to the Su- ness, on a full based consideration of each preme penalty jurispru- Court’s death evidence, defendant’s as well as dence. the character and record of the individual offender and the par- circumstances of the

Prior to Penry certainly before offense; (2) ticular 1994, give full effect Nelson’s conviction became final in that by selecting the relevant appropriate Court decisions had sentence, clearly Eighth imprisonment established the either life Amendment death, requirement of sentencing according individualized to each defendant’s level See, capital e.g., McCleskey cases. v. of culpability moral and deathworthiness. 279, 303-04, Kemp, Cole, 481 U.S. 107 S.Ct. See (Dennis, J., 443 F.3d at 443-44 1756, (1987) 95 (noting L.Ed.2d 262 that Nelson, dissenting); 442 F.3d at 303-06 “the imposed Court has a number of re- (Dennis, J., concurring judgment); quirements capital on the sentencing pro- Tennard, (Dennis, 284 J., F.3d 599-601 cess to ensure that capital sentencing deci- dissenting). sions rest the individualized inquiry Nor is the Eighth Amendment’s concern contemplated in Gregg” stating that with individual culpability limited to the “the Constitution ability limits State’s phase;4 rather, selection the principle that narrow a sentencer’s discretion to consider capital punishment must be reserved for relevant evidence that might cause it to the most culpable perpetrators of the most impose sentence”); decline to the death implemented serious crimes “is throughout Stephens, 862, 879,

Zant v. 462 U.S. capital sentencing process.” Roper v. 2733, (1983) (“What L.Ed.2d 235 Simmons, 543 U.S. important at the selection stage is an Indeed, L.Ed.2d 1 individualized determination on the basis imperative culpable most of- of the character of the individual and the fenders be sentenced to death has also crime.”); circumstances of Eddings long animated the Court’s decisions hold- Oklahoma, 104, 113-14, 455 U.S. ing that certain classes of crimes and of- (1982) 71 L.Ed.2d 1 (holding fenders are categorically ineligible for the capital may sentencer prevented penalty, death including persons under the considering any relevant age of crime, 18 at the time of their presented by defendant); see id. Ohio, Bell S.Ct. 1183 (holding (1978) reduced culpability juveniles (plurality “demon- Ohio, opinion) (same); juvenile Lockett v. strate[s] offenders cannot 586, 604-05, with reliability 57 L.Ed.2d 973 be classified among the (same). (plurality opinion) is, offenders”); That worst see also Thompson v. in order constitutionally Oklahoma, impose and car- 835, 836-38, ry out the penalty, capital death sentenc- S.Ct. 101 L.Ed.2d 702 (plurali- Tuilaepa v. California, 971- eligible the class of defendants for the death (1994), decision,” penalty, and the "selection “where recognized the Court there were two the sentencer determines whether a defendant phases capital sentencing process: eligible penalty death should in fact decision,’1 “eligibility which serves to narrow receive that sentence.” imposition Penry Recognized Eighth of I That The (prohibiting death ty opinion) Requires Capital A Sen- Amendment at the persons under 16 time of penalty Jury Ability To Have To tencing The crime; why juveniles their “The reasons Both And Give All Consider To privileges the and not trusted with are Effect Mitigating Relevant Evidence also explain an adult responsibilities of Choosing A Sentence. is conduct not as why irresponsible their that an morally reprehensible pre-existing Eighth as of Given the Amend- retarded, capital ment that a sentencer adult.”); requirement see mentally the Atkins sentencing capa- must individualized have 122 Virginia, 536 v. U.S. bility, it surprising is not (“Their (2002) L.Ed.2d 335 deficiencies 153 held that the Texas from exemption not warrant an criminal do as sentencing scheme unconstitutional sanctions, their cul personal but diminish reading the Texas of when courts’ of an persons raping convicted pability.”); permit the not statute did woman, Georgia, 433 adult see Coker sentencer assess to either the defendant’s 584, 598, 2861, 53 L.Ed.2d U.S. culpability appropriate or select sen- doubt (“Rape is without deserv tence. Consistent with the well estab- punishment; but of ing of serious terms sentencing principles lished individualized injury to the depravity moral and that held to be required had it does com public, and not person Amendment, Eighth murder, which does involve pare Penry I held: life.”); human mur unjustified taking of and is the Underlying Eddings Lockett killings derers whose do involve principle punishment di- should be depravity any elevated level of moral rectly personal culpability related to the circumstance, see aggravating other God If of the criminal defendant. the sen- 420, 433, Georgia, 446 U.S. frey v. tencer is to make an individualized as- (plurality 64 L.Ed.2d 398 appropriateness sessment of of death sentence where opinion) (reversing death “evidence about the de- penalty, crimes cannot be said to petitioner’s “[t]he background character is fendant’s materially reflected a consciousness ” Moreover, Eddings .... relevant any ‘depraved’ person than that of more enough simply makes that it is not clear murder”); guilty persons of convicted to present miti- allow the defendant sufficiently felony of murder who lack gating evidence to sentencer. state, culpable mental see Enmund must also be able to consider sentencer Florida, in im- (1982) (“Enmund[’s] ... Only posing then can we sentence. culpability plainly different sure the sentencer has treated killed; yet the robbers who the State hu- “uniquely individual defendant as them attributed En- treated alike and man has made a reliable bein[g]” and those culpability mund the who killed appro- that death is the determination “Thus, un Kerseys. impermissible This was the sentence priate sentence. Amendment.”).5 re- imposed penalty stage at the should Eighth der Arizona, culpability required in ized determination 5. See also Tison v. capital L.Ed.2d state with cases is mental Enmund, (1987) (clarifying scope crime”). and not- the defendant commits ing that facet of the individual- “[a] critical I); Carolina, response McKoy a reasoned moral v. North fleet character, background, defendant’s crime.” (1990) (“As [Penry the Court stated ‘ I, /](cid:127)'(cid:127) (cid:127) (cid:127) (cid:127) Constitution “[T]he U.S. at S.Ct. 2934 limits

(italics added) (inter- (emphasis in original) ability State’s to narrow a sentencer’s dis omitted). In Penry nal citations “[t]he cretion to relevant consider evidence that argument State ... conceded at oral that might impose cause it to decline to the juror Penry if a concluded that acted delib- Indeed, death precisely sentence.” it is erately to likely dangerous and was directly because the punishment should be future, the but also concluded that because to personal culpability related the of his mental he was retardation not suffi- defendant jury that the must to be allowed ciently culpable to the pen- deserve death consider and to give mitigating effect evi alty, juror that be unable give would to dence relevant to a defendant’s character effect to mitigating that evidence under or record or the circumstances of the of given the instructions case.” Id. at ”) (internal omitted); fense.’ citation Saffle Consequently, S.Ct. 2934. the Parks, 484, 491, v. Court held that “in the absence of instruc- (1990) (“In Penry, we jury tions informing the that it could con- held that of a resolution claim that the give and mitigating sider effect to the evi- prevented Texas death penalty scheme the dence of Penry’s mental retardation and jury considering giving from and effect to background by declining abused to impose certain types mitigating evidence did penalty jury the death ... the was not not involve the creation of a new rule provided expressing a vehicle its for Teague. under Penry, See ‘reasoned moral to response’ that evidence 315, 109 S.Ct. To the 2934[]. extent that sentencing rendering decision.” Id. added). Penry’s (emphasis system claim was the S.Ct. 2934 prevented from jury giving any the miti The Supreme Court Has Consistently gating effect to the evidence his mental I’s Penry Holding AThat Reaffirmed childhood, retardation and abuse the Capital Jury Sentencing Must Be Able decision that the claim did not require the To Consider And Give To All Effect creation of a rule is not surprising. new Mitigating Relevant Evidence In Se- Lockett and Eddings command that lecting A Sentence. jury State must give allow the to effect to term, its immediately following 1990 mitigating in making evidence the sentenc repeatedly reaffirmed decision; ing Penry’s contention was that holding i.e., and of Penry jury Texas barred from acting.”); so Eighth that the requires Amendment Blystone v. Pennsylvania, 494 U.S. capital sentencer be able to consider 304-05, L.Ed.2d 255 give and effect to all relevant mitigating (1990) (“Last Term, we elaborated on this in selecting imposing evidence ap- principle, holding that ‘the must be propriate life or death sentence. See able give to consider and any effect to Boyde California, v. mitigating evidence relevant to a defen 110 background dant’s (“The character or the Eighth requires Amendment crime.’ Penry Ly circumstances be able to consider and 302, 328, naugh, all relevant mitigating evidence offered alia, by petitioner.”) (1989)”). (citing, inter Penry L.Ed.2d 256[ ] 1990s, mitigating to answer the continued Through the the Court Penry requirement it ratify allowing issues without also to use such sentencing jury must able con- capital appropriate evidence to select the life the defendant’s II effect to sider Court ex- death sentence. selecting relevant key plained “the under /” as fol- appropriate sentence. imposing lows: Tennessee, Payne See I did not hold that mere “mitigating mention of circumstances” (“We that a cannot pre- have held State a capital sentencing satisfies the considering ‘any clude sentencer Eighth Nor it stand Amendment. does that the de- relevant evidence’ that it is proposition constitution- support proffers sentence fendant ally sufficient inform no [Vjirtually than .... limits less death may “consider” circumstances placed on the relevant evi- are deciding appropriate in the sentence. may introduce capital defendant dence Penry I Rather, key that the under is ....”) concerning his own circumstances give the “consider jury be able to and (internal omitted); Buchanan citations evi- mitigating] to defendant’s [a effect 269, 757, 276, Angelone, 522 118 S.Ct. U.S. U.S., imposing dence in sentence.” 492 (1998) (“In the selection 319, 2934, 106 256 at L.Ed.2d the our cases have established that phase, added). also Johnson v. See (emphasis from precluded not be con- may sentencer Texas, 2658, 350, 381, 113 509 U.S. S.Ct. consider, may not to sidering, and refuse (1993) (O’CONNOR, J., 125 290 L.Ed.2d any constitutionally relevant ev- (“[A] al- dissenting) sentencer be [must] I, Eddings, Penry and [citing idence. full give to full consideration and lowed concern has Our consistent Lockett].... (em- circumstances” effect jury’s that on the sen- been restrictions original)). only it is when phasis in For preclude the tencing determination not given express- jury the a “vehicle for to miti- jury being give able effect response’ to that ing its ‘reasoned moral evidence.”). gating de- rendering sentencing evidence Penry 782, 121 U.S. 532 I, U.S., 328, Penry cision,” 109 492 at (2001) (“Penry 1910, 9 150 L.Ed.2d S.Ct. 256, 2934, that we can 106 L.Ed.2d S.Ct. IP’), emphatically reaf- Supreme Court be that “has treated sure Penry I. applied firmed and rule hu- ‘uniquely defendant as individual I Penry that it had The Court held made bein[g]’ man and has a reliable case, in a capital ‘[t]he that “confirm[ed] appro- that death is the determination ... consider and must be able to sentencer sentence,” id., at 492 U.S. priate in im- [mitigating] effect to evidence give 256 ” sentence,’ so that “the sentence posing Carolina, North (quoting Woodson v. reasoned moral imposed reflects] ... 280, 304, 305, 49 background, response to the defendant’s (1976)). character, crime.” Id. at 788, 121 and II, Penry at 121 S.Ct. I, Penry at U.S. (quoting S.Ct. Penry I 2934) (alterations again, the rule of Applying in origi- 109 S.Ct. Penry II pre-1991 that nal). held Penry II made clear un- capital sentencing scheme was the rule of a Texas court violates Penry’s second I constitutional Penry Eighth Amendment and the when the same capital sentencing essentially for to use relevant allows constitutionally give it was defective and to the mitigat reasons consider effect of mental retardation ing time. The state trial court had evidence first ” Tennard, .... childhood abuse attempted to cure the constitutional defi (2) 2562; at S.Ct. ‘“it is not in ciency supplemental with an ad hoc enough simply to the defendant allow struction, pass that instruction did not but present mitigating sentenc Penry muster under rule of I because ’” “ ... but er rather sentencer must ‘[t]he clearly jurors it did not inform the give also able to consider and effect to they legally empowered were to consider ” sentence,’ in imposing that evidence id. Penry’s mitigating evi effect I, (quoting Penry S.Ct. 2562 selecting imposing appro dence in (3) 2934); priate life or death sentence. As the Pen- “give to” language stated, II ry repeating court words of “ decision, key” “the to that id. at juror I: reasonable could well ‘[A] 2562; same two issues believed there was no vehicle presented were to Tennard’s view that did not expressing “insufficient Penry’s were for the sentenced to based deserve to be death ” consider Penry’s case to effect to upon mitigating evidence.’ of mental retardation and child (quoting Penry S.Ct. 1910 abuse,” id.) hood Penry’s mental retar 2934). “ dation evidence ‘had relevance to [his] 2004, In the Court twice reaf- culpability beyond moral scope the Penry of I in firmed the rule Texas death special questio[n]’ [deliberateness] verdict Dretke, penalty In 542 cases. Tennard v. ‘[p]ersonal because is culpability solely 2562, 274, U.S. 124 S.Ct. 159 L.Ed.2d 384 a capacity function of a defendant’s to act (2004), Texas, and ’” Smith “deliberately,” id. at 124 S.Ct. (2004), 125 S.Ct. 303 the I, 322, 109 2562 (quoting Penry 492 at U.S. Penry vitality Court confirmed 7’s and re- 2934) (alterations (6) original); S.Ct. in governing stated the rules its application. Penry’s mental retardation evidence “was plain Tennard Smith made and relevant the dangerousness spe future ” in inquiry that this court must a undertake factor,’ ‘only cial as an aggravating issue Penry simply case whether is consider I, id. at (quoting Penry S.Ct. 2562 (ie., the defendant’s evidence is relevant 2934); 492 U.S. at and prove disprove any whether it tends to simply “the two issues failed to fact miti- might that the sentencer deem ‘provide vehicle for to give the [the so, gating), and, if determine whether the evidence childhood ef abuse] ” jury’s ability issues inhibit the I, (quoting Penry fect.’ at consider and effect to that evidence. 2934). 322-24, 109 S.Ct. clearly Tennard also instructed and Smith upon The Tennard court next called us both and this court the Texas courts to to comply the rules of federal law it refrain from placing glosses restrictive on had concerning established the introduc- jurisprudence creating un- sentencing body tion and use of a impediments warranted claims. in capital defendant’s Tennard, the Court first summarized holding case. It adduced in McKoy its recognized rules of federal law it had capital that in “meaning cases the of rele- in Penry pre-1991 that: vance no different is the context of capital sentencing “provided scheme a con- ... any than other jurors context, stitutionally inadequate vehicle general evidentiary thus the tendency to make the exis The Tennard court also held that any standard — Fifth had erred in creating Circuit consequence fact that is of any tence applying gloss its own restrictive prob more determination of the action —its relevance” “constitutional rule6—as than it would be probable or less able screening threshold test to truncate its Tennard, applies.” without the evidence— review, judicial rather applying than (quoting 124 S.Ct. 2562 clearly federal rules established 1227) McKoy, 494 U.S. at miti- Court’s decisions defendant’s omitted). (internal Then, marks quotation gating evidence and claim. The recognized the ef the Court Tennard disapproved of the “constitutional holdings previous regarding fects its rule “ha[ving] relevance” as no foundation capital cases. “Once relevance standard in the decisions of this Court. Neither met, is low threshold for relevance I nor progeny mitigat- its screened requires Amendment ‘Eighth ing evidence for ‘constitutional relevance’ effect to’ a be able to consider considering whether in- before mitigating evidence.” capital defendant’s comported Eighth structions with the Boyde, (quoting S.Ct. Amendment.” Id. S.Ct. 2562. 1190). 377-78, 110 Finally, the Tennard court held Further, on and Court commented impaired evidence of intellectual function- opinion Skipper from its South quoted ing obviously clearly evidence under Carolina, established “ relevance standard (1986), rules about serve “as a basis for a regarding ‘might sentence ” death,”’ less than id. at miti the introduction and use relevant (quoting Skipper, 476 U.S. denied gating evidence. “We never 1669), relationship and that “[t]he has the relevance gravity place the special between issues and Tennard’s analysis, insofar evidence of a trivial IQ low evidence has the same essential or feature of the character defendant’s relationship features as the between unlikely of crime circumstances is to Penry’s special issues and mental retarda- mitigate any tendency to the defen tion func- Impaired evidence. intellectual Tennard, 542 U.S. at culpability.” dant’s beyond tioning has dimension 286, (citing 124 Skipper, S.Ct. 2562 476 ability on the impact has individual’s 1669). 2, “However, at n. 106 U.S. 7 S.Ct. deliberately.” to act Id. at 124 S.Ct. say only to and circum those features I, (citing Penry 2562 492 U.S. at 109 panel appellate a stances that federal 2934). S.Ct. (let judges deems ‘severe’ alone a opinion O’Connor wrote the for Justice severe’) a ‘uniquely could have such ten Tennard, in majority and was six-member Rather, dency question incorrect. is is Stevens, Kennedy, joined by Justices Sout- such simply the evidence is of whether er, Ginsburg Breyer. and ‘might that it “as a basis character serve ’ ” than death.” Id. at Tennard, Smith, for sentence less Shortly in after (quoting Skipper, 124 S.Ct. 2562 476 Court reiterated the stan- 1669). governs at test the admission U.S. dard relevance time, through no fault of 6. Under the Fifth Circuit’s rule at that defendant was burdened relevant, own, constitutionally (2) to be the defendant's and that the defendant's criminal his (1) unique- evidence had to show act was attributable to that severe condition. handicap ly permanent severe with which the in capital joined and use of Seven the Court members of Smith, per court curiam in opinion cases. The also including Smith reaffirmed Rehnquist Chief Justice given the rule “that must be and Justices O’Connor, Stevens, Souter, Kennedy, Gins- weigh effective miti- vehicle burg, Breyer. Scalia, joined and Justice gating long as the evidence so defendant Thomas, dissented, Justice saying only relevance, has met a low threshold that he judgment would affirm the which is evidence which satisfied tends Appeals Texas Court of Criminal and logically disprove some fact prove or adhering longstanding position to his in a fact-finder circumstance which could rea- Arizona, 639, 673, Walton v. sonably have mitigating deem to value.” (1990) (Scalia, L.Ed.2d Smith, 125 S.Ct. 400 (quot- J., in concurring part concurring and Tennard, ing judgment), “vot[ing] uphold 2562) (internal omitted). marks quotation an Eighth claim Amendment that the sen- Smith, presented defendant had tencer’s unlawfully discretion has been re- (1) potentially evidence that had organic he Smith, stricted.” See learning speech handicaps; disabilities (Scalia, J., S.Ct. 400 dissenting). (2) IQ IQ 78, he had a a full verbal Finally, again the Court con and had in special been education classes firmed the requiring rule that a (3) school; his behavior at school was capital sentencing jury be able to consider exemplary, notwithstanding often his low effect to relevant mitigating evi IQ disabilities; learning father dence of the appropriate selection drug was a addict and violent criminal who life or death Oregon sentence. See v. Guz regularly money from his family stole ek, addiction; support his drug he was (2006) (“The Eighth Amend years old at the time of his crime. ‘ “reliability ment upon insists the deter Id. at 400. According mination that is appropriate death court, petitioner’s Smith “[t]hat ’ punishment specific case.” mitigation purposes relevant for Eighth Amendment also insists ‘that a sen plain precedents, under our even those tencing jury “to be able consider and predating Tennard.” effect to mitigating evidence” about the 400 (citing Penry 319-22, 109 defendant’s or “character record or the S.Ct. 501 at Payne, U.S. ’”) circumstances of (quoting the offense.” 377-78, S.Ct. Boyde, 327-28, 109 2934) Penry 492 U.S at S.Ct. Eddings, S.Ct. and U.S. at (internal omitted). citations 869). Having found the evidence relevant, stated that Eighth the Court “the sum, In the Court has contin- the trial required Amendment court to em ued to reaffirm apply Pewry and the I rule power jury capable the vehicle of many in its inception cases since in Id.; giving evidence.” effect to that see has recognized application to cases in- (noting also id. at 125 S.Ct. 400 that volving such relevant Penry key II “held that ‘the under Penry impaired function, as IQ, intellectual low I is jury that the be able to “consider and childhood, troubled and partic- abusive give mitigation] to defendant’s ipation classes, [a evi in special education and effect ’”) in dence sentence” imposing (quoting retardation, mental developed and has nu- II, Penry 1910). auxiliary jurisprudential merous rules in I That Penry of Johnson established these auxilia application the the support not limit ry principles change and did or rule. Penry clearly rule of I itself was the most the demonstrated Court’s decision That Demonstrate The Court’s Cases case, Buchanan. In that the Court held or Limit Change Does Not Johnson the state trial court’s to refusal Rule; Estab- Merely I It Penry concept mitigation instructions on the Relating Principles Auxiliary lishes particular statutorily on miti and defined Application. To Its gating Eighth factors did not violate the Fourteenth Amendments. Id. at 276- and Contrary argument by to the the State explained 118 S.Ct. 757. The Court colleagues, the my dissenting defendant, in arguing that the the con to limit change did not or Johnson significant the dis trary, misunderstood I Eighth Amend the rule it tinction had drawn between the two sentencing requires capital that a ment capital sentencing process: phases full be to consideration jury must able eligibility jury the phase, the which of a defendant’s relevant and effect all for eligible narrows the of defendants class imposing appro the mitigating evidence phase, the penalty, the death selection In life death sentence. priate concerned, in with which Buchanan was recognized three auxilia merely the Court jury im which determines whether ry principles implementing for an pose eligible a death sentence on defen (1) unique manner Because of the rule: 275-76, (citing dant. 118 S.Ct. 757 youth aligns mitigation Tuilaepa California, dangerousness into with an inquiry future (1994)). L.Ed.2d culpability or deathworthi assessment eligibility selection explaining In ness, evi relevant defendant’s phases, again the Court ratified the given youth may full consider dence principles I rule and described jury’s and effect ation answer in terms generated by had been Johnson issue; In dangerousness special future sup as that indicate the Court views them Penry viola to determine whether a order limiting, rather porting, than rules: occurred, reviewing must ask tion court eligibility phase, In the narrows is a likelihood whether there reasonable class of for eligible defendants has issues penalty, through often consider- death full way giving from prevents aggravating ation of circumstances. any effect to relevant consideration and phase, the selection determines evidence; may the state a death impose sentence whether shape jury’s and structure the consider .... eligible defendant long preclude it does ation so eligibility regard .... It is in giving any relevant the need phase that we have stressed because, evidence, as the Court mitigating limiting jury’s dis- channeling and the consistent subsequently explained, “[o]ur penalty to cretion ensure death has that restrictions on concern been punishment proportionate is pre not jury’s sentencing determination arbitrary or capricious therefore not being give contrast, to clude the from able in the selec- imposition. Buchanan mitigating emphasized evidence.” phase, effect tion we 269, 276, inquiry 118 S.Ct. for a into all relevant Angelone, 522 U.S. need broad v. (1998). an individu- mitigating evidence allow L.Ed.2d 702 326 Tuilaepa, supra, Johnson,

alized determination. by scathed Johnson. by as read 971-73, S.Ct., 2634-36; Buchanan, 114 at merely Roma precedent establishes Oklahoma, 1, 6-7, no v. 114 application Boyde test and adds 2004, 2008-09, 129 1 L.Ed.2d that a may shape State and structure miti- (1994); McCleskey Kemp, gation long consideration so itas does not 279, 304-06, 1756, 1773-75, prevent 107 S.Ct. 95 giving sentencer from effect to (1987); Stephens, supra, L.Ed.2d 262 evidence. 878-79, 103 S.Ct., at 2743-44.... Moreover, earlier, pointed as out since In the phase, selection our cases have decided, Johnson was in Penry established may that the sentencer not II, Tennard, repeatedly and Smith reaf- be precluded considering, may from firmed the rule and I holding Penry consider, any not constitution refuse it, first, Justice O’Connor described ally relevant mitigating evidence. Pen itself, next, Penry I in her dissent John- 302, 317-18, ry v. Lynaugh, U.S. 109 son, again in the majority six-member 2934, 2946-47, 106 L.Ed.2d 256 II, Penry finally in Tennard. In her (1989); Oklahoma, Eddings v. U.S. dissent, Johnson Justice O’Connor stated: 104, 113-14, 869, 876-77, 102 S.Ct. 2], plainly [In we held that (1982); Ohio, L.Ed.2d Lockett v. issues Eighth violated the 586, 604, 2951, 2961-65, Amendment to they the extent prevent- (1978). However, the state ed from giving full consider- may shape jury’s and structure the con ation and effect to a defendant’s rele- mitigation long sideration so as it vant mitigating evidence. preclude does not giving from way was in no limited to evidence any relevant evi effect aggravating under “fu- Texas, dence. Johnson dangerousness” ture issue. We stated 2658, 2666, there that “Eddings makes clear that it (1993); Penry, supra, at is not enough simply to allow the defen- S.Ct., 2951; Franklin v. Lynaugh, present dant to mitigating evidence to 2320, 2331, the sentencer. The sentencer must also Our consistent be able to give consider and effect to concern has been that restrictions on the that evidence in imposing sentence.” jm-y’s sentencing determination That we meant “full effect” is evident preclude being able to from the remainder of our discussion. evidence. We first determined Penry’s evi- (emphasis S.Ct. 757 dence of mental retardation and his added). abused childhood was relevant

Thus, as the Buchanan Court Pen- question read whether he acted deliberately ry I together Tuilaepa, Ro- under the first issue. But having cases, mano and other the rule of some relevance to an issue was not suffi- Instead, is not limited cient, Johnson at all. not, problem and the as the the Penry I holding Eighth today suggests, simply that no requires Amendment that a capital sen- jury instruction defined the term “delib- tencing jury fully be able to erately.” Instead, consider we noted that give effect to the defendant’s relevant miti- jury must be able to effect to the gating selecting appropri- evidence as it Penry’s “[p]er- related to ate sentence stands unlimited and un- culpability,” sonal solely which “is not disapproval its continued emphasized to act capacity of a defendant’s function ” to in the use of the Texas issues give not jury could ‘deliberately.’ The jury’s ability to any way “constrain” the the under Penry’s to evidence full effect mitigation evidence select- give effect to “deliberately” issue because first In compar- sentence. ing appropriate way “in that would not defined was system in- ing Virginia sentencing fully to consider clearly direct volved in Buchanan system the Texas it bears Penry’s mitigating evidence Penry stated: used in the Court is, That personal culpability.” on his jurors informed the that beyond the The instruction had relevance the evidence factor they aggravating if found the issue. scope of the first beyond a doubt then proved reasonable at death, but they “may penalty fix” the (alteration (O’Connor, J., dissenting) all the they that if believed that directed omitted). (internal citations in original) justified a lesser sentence then evidence too, Kennedy, Justice Significantly, a life The they impose “shall” sentence. Johnson’s, author, joined the six member a life impose thus allowed to was Tennard, and Penry II and in majorities aggravating even if it found the sentence majority in Smith. member the seven Moreover, in to proved. contrast factor Tennard and Smith Further, made clear ques- in special issues scheme the Texas I all applies to the rule of Penry, did in the instructions here tion that are categories in not constrain the manner of a defendant’s to the assessment relevant mitiga- give effect to jury was able might cause or culpability diminished tion. moral re- its reasoned jury through (internal citation 118 S.Ct. 757 rather imprisonment life sponse to select omitted). and footnote for the defendant. than a death sentence earlier, Buchanan, Furthermore, as described decisions, along with These in Tennard and Smith emphatically and continued Court resoundingly ratified courts and inferior federal as ex- held that state view uphold Justice O’Connor’s glosses or other- may through judicial Eighth pressed type or common law wise create ad hoc capital that a sen- requires Amendment that cut short screening rules fully consider de- threshold able to tencing penalty cases review of death by appellate mitigating evidence fendant’s relevant ap- indirectly have the effect and thus his moral using that evidence to assess upon constraints encouraging proving to that give full effect culpability and capital sentencing life the manner which by selecting appropriate effect to rele- able to full juries case. are for him or death sentence in the selection of mitigating evidence vant Also, has made clear as the Court imprisonment or life death appropriate Tennard, Smith, Buchanan, other cases. individual sentence cases, ability shape the State’s I’s rule that reaffirmation consider- capital sentencer’s structure the sentencing jury be able capital may not be mitigation evidence ation of full effect to full consideration giving both “preclude used to moreover, evidence, evidence” relevant any effect to relevant Boyde ana- test realigning for necessitates selecting appropriate sentence Buchanan, case present logue application in each case. the offender sentencer which, allegedly, capital 757. The Court incapable appropriately mitigating of either consider- evidence.” Id. The Court de- ing or miti- giving effect defendant’s cided that the rule to applied to such an gating purposes evidence for the of indi- alleged ambiguous jury instruction would sentencing. vidualized Due to the marked and, be the “reasonable likelihood” test sentencing differences between the Texas test, upon applying that concluded that system present in the case and the Califor- there was no likelihood that reasonable system Boyde, Boyde nia in the rule can- Boyde’s jury precluded had been from con- precisely not be in way the same sidering the background relevant and alleged the error in present dual the case. mitigation character evidence. As Chief Rehnquist explained: Justice Boyde, although jury was in- structed that impose must the death In this case we presented are with a penalty if it aggravating found the circum- single jury instruction. The instruction outweigh mitigating stances to circum- erroneous, concededly is not nor found a imprisonment stances and life if sentence court, by so in as was the case Strom versa, jurors it found vice retained a berg California, great deal of they discretion could 532, 75 L.Ed. 1117 The claim is weight assign decide what aggrava- the instruction ambiguous ting mitigating they factors and were subject therefore to an erroneous inter fully enabled to make the ultimate choice pretation. proper We think the inquiry impose whether to or withhold the death such case is whether there is a Thus, penalty. system California reasonable likelihood that jury has Boyde markedly was different from the applied the challenged instruction pre-1991 system under which the way prevents the consideration of jury legally was not authorized to choose constitutionally relevant Al evidence. any between life and death sentences in though a defendant need not establish Boyde, case. In argued the defendant jury that the was likely more than not to although jury significant retained sen- have impermissibly been inhibited discretion, tencing rights constitutional instruction, a capital sentencing pro were given violated because the was ceeding is not inconsistent with the an instruction that could have misled it Eighth Amendment if only there is thinking into it was not free to consider his possibility of such an inhibition. This background evidence of standard, “reasonable likelihood” we deciding character in whether to impose think, better accommodates the concerns penalty. the death beginning Near the finality accuracy than does a opinion, Chief Justice standard inquiry which makes the de Rehnquist reaffirmed the rule of I: pendent on single hypothetical how a Eighth “The requires Amendment juror “reasonable” might could or jury be able to consider and effect to interpreted the instruction. all relevant evidence offered S.Ct. 1190. petitioner.” Boyde, However, capital sentencing jury Because the point S.Ct. 1190. after that case, present Boyde opinion like the “give does not refer to the part effect” of the rule as it was not free or able to genu- impris- choose a life issue, inely question Nelson, onment being real sentence for alleged allegedly ambiguous whether the deficiency in- constitutional here affected the prevented jury’s struction had ability both “consider and “be[ing] able to consider ... all relevant effect” to Nelson’s relevant evi- ly, there was no need for the Court to dence; alleged ambigu- merely an it is Boyde affect- reshaping that could have consider further the test jury instruction ous of understanding types of the analogue Boyde their that it derived from its only ed they could consid- reasons, that mitigating evidence all of these the decision. For Indeed, section explain I the last er. Boyde of a test ana- Johnson Court’s use deficiency constitutional opinion, this the logue capable testing only preclu- for a affected a structural defect which here is jury’s ability of the to consider the sion sentencing proceeding capital the entire should not courts from prevent evidence error, analyzed for harmless cannot be and it reshaping analogue the test to make (1) i.e., binary defect is alleged detecting preclusion for of both suitable jury’s ability to consid- total absence of the jury’s ability give to and to consider mitigating purposes evidence for er the effect to relevant evidence. or culpability moral assessing Nelson’s reasons, Considering foregoing all of the (2) deathworthiness; the total absence I that the decisions conclude sub- jury’s ability the evidence sequent to Johnson demonstrate nei- selecting it deems effect the sentence any ther it nor other decision has been assessment. based on that appropriate limiting changing read as or the constitu- to be Accordingly, Boyde if the test requirements principles tional estab- case, by analogy present Penny lished in I. adjusted properly and com- must be alleged elements of the pletely fit both Because, Capital Sentencing 5. Texas’ Pre-1991 un- violation here.

constitutional Constitutionally Provided a Scheme Boyde, there is seri- like the situation Inadequate Jurors to Con- was Vehicle question ous here whether for Mitigating to Nelson’s precluded giving from effect sider and Give Effect evidence, proper inquiry Evidence that Nelson Presented. there is a reason- should be whether here above, by explained the time Nel- As prevented that the was able likelihood final in conviction became son’s considering mitigation evi- from Nelson’s clearly Court cases had relevant culpability giving dence to assess his constitutionally order established selecting to that evidence carry penalty, out the death impose and appropriate sentence. (1) sentencer must be enabled: capital unique nature of the Because of of each make an individualized assessment in John- youth mitigation evidence issue death- culpability moral defendant’s son, apparently there considered the Court (2) full effect to worthiness and jury’s in the alleged failure either by selecting between that evidence was at ability to consider the evidence appro- as the imprisonment or death life in Johnson must issue. The Court priate sentence. fully capable concluded case, presented In this Nelson giving effect to of his trial punishment phase during if in- sentence by selecting the (2) mother; (1) rejected by his he was precluded had not them struction (3) alcohol; he had drugs and Thus, he abused full the situ- giving it consideration. relationships with his brother troubled in both only unitary errors posing ations child, women; had fathered he quite similar Boyde and Johnson were to have a not allowed in with whom he was differences respect despite other from bor- relationship; and he suffered Consequent- sentencing systems. the two personality disorder. comparative derline The state culpabili- level of Nelson’s Nelson, all courts held that of Nelson’s evidence ty.” (Dennis, J., 442 F.3d at 306 adequately could be considered within the concurring judgment). Accordingly, dangerous- and “future “deliberateness” my the reasons set forth in concurring special ness” issues. panel I opinion, agree with the en banc majority that Penny violation occurred in abundantly It that clear there is more this case and that the state courts unrea- than a reasonable likelihood that the sonably applied clearly established federal fully permitted was not consider and denying law in Nelson’s claim. evidence, effect to Nelson’s the “deliberateness” “future dan- 6. The Restrictive Applied, Glosses At gerousness” special permit issues did not The Panel Level In This Case And that to consider how Others Have No Basis In The Su- affected their assessment of Nelson’s mor- preme Court’s Decisions. culpability agree upon al or to whether the penalty imprisonment death or life As the Supreme was the Court made unmistak appropriate ably Tennard, sentence his case. There clear this court is not question can be no mitigat- permitted Nelson’s to artificially ingeniously or nar evidence, ing particularly his evidence of a I Penny by imposing row screening tests frequently disorienting person- placing borderline or glosses restrictive on the Su disorder, ality medically recognized preme Tennard, men- jurisprudence. Court’s illness,7 implicates tal 283-84, 2562; deathworthiness at see Smith, culpability. and his moral Nelson’s trou- also

bled background Tennard, and mental In disorder 400. the Court admonished morally culpable make him less indepen- this circuit that its “constitutional rele dently vance,” of the issues of whether he acted “uniquely severe permanent handi deliberately danger. or would be a future cap,” and “nexus” tests were restrictive But only upon “because the called glosses that had “no foundation in the relatively simple yes answer two or no decisions” of the Supreme Court. Ten questions, nard, there is no reason to suppose 124 S.Ct. 2562. it instructed, could or would consider the evi- As Tennard permit we are not complex dence for the purpose assessing of ted to alter or elaborate the tests outlined witness, expert psychiatric interpersonal Nelson's relationships Dr. and intense char- Hickman, person- testified that his borderline by alternating acterized between extremes of ality experience disorder caused him to sud- devaluation”; (3) idealization and "identity den, violent outbursts of emotion that clouded markedly disturbance: persistently unsta- Dretke, judgment. his 282, See Nelson v. 442 F.3d self”; (4) self-image ble "impul- or sense of (5th Cir.2006) (Dennis, J., 310-11 con- sivity potentially least two areas that are curring judgment) (describing in the testimo- (5) self-damaging”; "recurrent suicidal be- ny psychological about Nelson's condition in havior, threats, gestures, self-mutilating or or detail). Diagnostic The fourth edition of behavior”; (6) instability "affective due to a and Statistical Manual of Mental Disorders mood”; (7) reactivity marked "chronic Personality defines Borderline Disorder as (8) feelings emptiness”; "inappropriate, in- pervasive pattern instability "[a] of inter- anger difficulty controlling tense anger”; personal relationships, self-image, and af- (9) "transient, paranoid stress-related fects, impulsivity by early and marked adult- symptoms.” ideation or severe dissociative contexts,” present variety hood and ain Association, Psychiatric Diagnostic American by following: marked five or more of the and Statistical Manual of Mental Disorders imagined "frantic efforts to avoid real or ed., (4th text.rev., 2000). abandonment”; pattern "a of unstable addition, agree majority’s In with the “fail to so as to wholly-unfounded reject defendant’s] heart of decision [a reach “double-edged” claims.” Id. evidence rule. This court deny used Pen- has sometimes Johnson mitigating evi- Nelson’s holding by stating adopted ry claims Johnson the con- within could be considered dence rule, “double-edged” a so-called issues, state court text mitigating evidence does not under which panel opinion Judge Jones’ and Chief juror con Penry scrutiny unless a trigger pre-Ten- erroneously relied this case that, the evidence could sidering precedent like Fifth Circuit nard test, un mitigating, and not aggravating, are “constitutional relevance” defunct See, e.g., Cole v. unsupported der the issues. (5th Judge Dretke, court and Chief The state 505-08 & n. 54 cases. 418 F.3d nom., used such cases panel opinion Cir.2005), Jones’ granted cert. sub Abdul- — concern- that both Nelson’s -, find Quarterman, U.S. Kabir relation- and troubled ing background (2006). 432, 166 L.Ed.2d 307 As the voluntary intoxi- ships and his evidence out, I although Peni'y majority points considered sufficiently cation could be problems that one of the court remarked issues. See special of the scope within application issues with Nelson, light In at 285-86. 442 F.3d juror only was that a could Penry’s case described clearly law established Penry’s evidence of mental retarda find above, however, rely it was error factor, Penry aggravating see tion to be screening and Fifth threshold prior Circuit that rules in those cases. deci was not the basis for the observation Judge troubling is Chief Even more limited to I is not therefore sion yet another opinion’sresort panel Jones’ Moreover, “double-edged” evidence. such glosses on the circuit’s restrictive of this from the my I dissent explained Penry jurisprudence, Court’s Supreme Cole, noth rehearing en banc denial of mental disorder” the form of the “treatable decision Johnson ing in the Court’s a test, evidence of mental under which indicates that the John subsequent cases theoretically treatable disorder that is Cole, a rule. See adopted court such son Nelson, Penry evidence. is not considered (Dennis, J., dissenting). at 450-51 443 F.3d Dretke, 417 (citing Coble v. 442 F.3d (5th Cir.2005)). Again, this test F.3d 508 Cap- To Enable Its 7. The State’s Failure has no basis gloss that adds Full Sentencing Jury To Give ital This circuit’s decisions. Court’s To Nelson’s And Consideration Effect theoretically non-permanent any rule Mitigating Evidence Cannot Relevant requisite given illness can be mental Error. Be Harmless issues is through the Texas to avoid simply another contrivance Er- Harmless The State Waived Its i. indi- requirements of Argument. ror sentencing jurisprudence, vidualized any argue not The state did not majority that it should agree until be harmless in this case could error applied.8 — claim), granted, cert. recently granted rise to certio- Supreme Court 8. The —, involving Brewer this rule. See L.Ed.2d 307 rari in a case (5th Cir.) Dretke, (stating 442 F.3d (2006). non-permanent mental illness does is, Ordinarily, be, its en banc brief this court. trial court’s error or could ever showing (indeed, state bears the burden of harmless I conclude below that preserved error was harmless. See se); such an error per is reversible Benitez, Dominguez United States v. 542 reversing Nelson’s death sentence and or- 81 n. 159 dering sentencing a new proceeding at addition, the state permitted fully which the consid- can waive failing harmless error review er Nelson’s evidence in deter- in timely unequivo- to raise the issue mining appropriate sentence cannot be cal manner in the district court. See Accordingly, considered a futile act. Cotton, (7th Sanders v. 398 F.3d court can properly conclude that the state Kelchner, Cir.2005); Lam v. 304 F.3d has waived harmless error review and that (3d Cir.2002); Randy 269-70 Hertz & appropriate this is not an case in which Corpus S. Liebman, James Federal Habeas disregard this court should the state’s 31.2, § at 1512 & n. waiver. PRACTICE & PROCEDURE (5th ed.2005); Roach, see also Saldano v. (5th Cir.2004). 363 F.3d 554-55 Al- Penny ii. A A Error Is Structural De- though a court retains the discretion to That Not Susceptible Is To fect consider the harmless error issue even Harmless Error Review. waived, when it general- has been it should principles Under clearly of law estab- ly do so if the error’s harmlessness is decisions, lished cursory clear from even a review of the the constitutional violation in this case was proceed- record and reversal for further a “structural defect” that cannot be ana- ings nothing would be more than a waste lyzed as harmless “trial error.” This is Sanders, of resources. See 398 F.3d at because the violation was not a discrete 582; Giovannetti, United States v. 928 error that a reviewing court can determine (7th Cir.1991). F.2d 226-27 Whether from the record had no substantial and the court should overlook the state’s waiv- injurious effect or jury’s influence on the any er of in particular harmless error case Rather, determination of the sentence. depends length on and complexity “the the violation was the State’s failure in this record, whether the harmlessness of capital case to enable its sentencing jury to the error or errors found is certain or give full effect to Nelson’s relevant miti- debatable, and whether a reversal will re- in gating determining the sen- protracted, costly, sult in ultimately tence. proceedings futile in the district court.” Giovannetti, F.2d at 227. 928 history purpose of harmless error review why demonstrates inap- is

Although did not consider the propriate in this dichotomy case. The be- the state’s failure to raise harmless error tween errors of constitutional dimension in my panel opinion, I concurring am now may that be found to be harmless and convinced that any argu- the state waived may began those that Chapman ment concerning by failing harmless error California, Moreover, it in raise the district court. S.Ct. Giovannetti, L.Ed.2d 705 applying Chapman, set out in factors Su- preme recognized it is clear that this not a in is case which “there are we our some constitutional rights should exercise discretion to over- so basic to a fair look that waiver. The record Nelson’s trial their infraction can never be ” case is substantial and the issues com- are treated as harmless error ....

plex; certainly it is debatable whether the 824. pointed The Court confessions,9 jury” and is to harmless error right amenable coerced against rule counsel,10 impartial right to an ... analysis “may quantita- because it case, and, the rule in a later judge,11 tively assessed the context of other evi- jeopardy,12 belonging against double presented dence order to determine rights impor so the list of constitutional whether its admission was harmless be- automatic requires violation tant that their 307-08, yond a reasonable doubt.” Id. at Weight et reversal. See 3B ChaRles Alan At S.Ct. 1246. the other end of the § 855 PRACTICE & Prooedure Federal al. spectrum of constitutional errors lie ed.2004). (3d that could be For errors “structural defects the constitution of harmless, Chapman established treated as mechanism, defy analysis the trial which has the burden of prosecution by ‘harmless-error’ standards. The entire harmless, error was showing beginning conduct of the trial from to end unless the court is required reversal is obviously affected defects [structural that it was harm “able to declare belief such the absence of counsel for a crimi- as] Chap doubt.” beyond less reasonable presence nal defendant [and] man, at 87 S.Ct. 824. The “ judge impartial.” bench of a who is not Chapman court against warned ‘overem 1246. The exis- notion that error is harmless phasis’ on the tence of a structural defect “affect[s] overwhelming guilt.” if evidence of there is proceeds, Wright within the trial framework Later, supra, § 3B al., et Carolina, [being] simply rather than an error Bumper v. North itself.” Id. n. trial process (1968), struck a similar the Court A structural defect “transcends the “ chord, that “it is not the func emphasizing process” criminal because ‘[w]ithout tion of this Court to determine innocence protections, a criminal trial these basic apply much less to our own sub guilt, ... reliably cannot serve its function justice. duty to jective notions of Our is may regarded be punishment no criminal ” uphold the Constitution United Id. fundamentally fair.’ States.” Clark, Rose v. (quoting 111 1246 478 S.Ct. Chapman, twenty-four years after Some 570, 577-78, 3101, 106 S.Ct. 92 U.S. dichotomy recognized, building on the it (1986)). L.Ed.2d 460 Fulminante, the Court Arizona v. 499 Fulminante, recog- also the Court 279, 1246, 111 S.Ct. 113 L.Ed.2d 302 Chapman it to nized that since had added (1991), theory distinguish- a developed structural constitutional category errors,” “trial ing between constitutional subject not to harmless error errors harmless, can and constitutional which following: “unlawful exclusion of members defects,” cannot. The “structural grand race from a of the defendant’s that trial error explained “oceur[s] self-representation at jury;”13 right “the during presentation the case 323, 8, Georgia, S.Ct. (citing Payne 12. Price v. 398 U.S. 90 9. Id. at 23 n. 87 S.Ct. 824 v. Arkansas, 844, 560, 2 78 S.Ct. L.Ed.2d 300 26 (1958)). L.Ed.2d 975 (citing Vasquez S.Ct. 1246 13. Id. at (citing Wainwright, 10. Id. Gideon v. Hillery, 474 U.S. (1963)). (1986)). Ohio, (citing Tumey 11. Id. (1927)). 71 L.Ed. 749 trial;”14 so, right public hypothesize “the trial.”15 That must be because itself, In Fulminante the Court held in fact guilty verdict was never of a coerced confession is a the admission inescapable rendered —no matter how subject analy- trial error to harmless error findings support that verdict sis, prior reversing its classification might jury-trial be—would violate the Chapman of that kind of error as a struc- guarantee. however, Ultimately, tural defect. a ma- (internal Id. at S.Ct. 2078 citations jority of the Fulminante court held that omitted). And, quotation marks as he beyond a the error was not harmless rea- elaborated, particular sonable doubt case and Since, [just] for the reasons described affirmed the Arizona Court’s de- ..., there has been no verdict with- Fulminante a new trial. grant cision to Amendment, in meaning of the Sixth premise Chapman the entire review later, years Two simply being no absent. There Louisiana, Sullivan v. guilty-beyond-a-reasonable- verdict of (1993), L.Ed.2d case doubt, question whether the same review, held that a constitutional- direct guilty-beyond-a-reasonable- verdict of ly deficient reasonable instruc- doubt doubt would have been rendered absent tion, “consequences which carries with it utterly the constitutional error is mean- in- necessarily unquantifiable that are ingless. object, speak, There is no so to determinate, unquestionably qualifies as a upon which scrutiny harmless-error can structural error.” operate. appellate The most an court (internal omitted). quotation marks can surely conclude is that a would explained,

As Justice the harmless Scalia petitioner guilty beyond found question Chapman poses error for review- jury’s reasonable doubt—not ing courts is finding guilty beyond actual a reason- effect the constitutional error what surely able doubt would not have been expected might generally be to have absent the constitutional error. different jury, upon reasonable but rather what enough. That is not The Sixth Amend- guilty upon had verdict requires appellate spec- ment more than the case at hand. Harmless-error re- hypothetical jury’s ulation about a ac- ... view looks to the basis on which the tion, or else directed verdicts for the jury actually rested its verdict. The would be appeal; State sustainable on words, whether, inquiry, in not other is requires jury finding guilty. an actual in a trial that occurred without the er- (internal Id. S.Ct. 2078 citations ror, guilty surely a verdict would have omitted). rendered, guilty been but whether the in in actually verdict rendered this trial Also in surely unattributable to changed was the error. Brecht the harmless error rule (citing Wiggins, designated by Id. McKaskle that have been as "structural” courts, 177-78 n. including the Court and various lower (1984)). trial, trial, right speedy public to a and right appeal. to an See 2 Randy & Hertz (citing Georgia, 15. Waller v. James S. Corpus Liebman, Federal Prac- Habeas 49 n. L.Ed.2d 31.3, (5th § at 1521-30 tice & Procedure (1984)). categories, In addition to these com- ed.2005). rights pointed mentators have to a number of cases, corpus analysis to habeas hold- harmless error applies declare them to that, any court be under ing on collateral review of state harmless standard. decisions, apply the federal courts should Applying foregoing principles, con- States, of the Kotteakos v. United standard clude that the constitutional violation that 90 L.Ed. pre-1991 capital occurred when the (1946), asks whether the error had a which sentencing system applied to a case in injurious effect on the ver- substantial which a defendant had mitigat- introduced Chapman dict, than harmless rather ing reasonably evidence that may have standard, beyond a reasonable doubt caused a sentencer to impose a sentence of trial error decide whether constitutional death, than less the violation was caused

was harmless. But the Brecht court did not “trial error” but a “structural alter, long- not fact reaffirmed as subject defect” that is not to harmless standing, the rule that a constitutional analysis. error per se structural defect is reversible specifically, plainly More the defect is analysis. subject to harmless error error,” not a “trial during which “occur[s] Fulminante, Citing the Court reiterated: presentation jury,” of the case to the during presen-

Tidal error “occur[s] analy- is amenable to harmless-error Fulminante, jury,” tation of the and is case sis. analysis

amenable to harmless-error be- Rehnquist S.Ct. 1246. As Chief Justice Fulminante, “may quantitatively explained cause it ... be as- a “trial error” is “may in the of other evidence ... quantitatively sessed context one which as- presented order to determine sessed the context of other evidence [the presented it had on At the order to determine whether other trial].” beyond its admission was harmless a rea- spectrum end of the constitutional Fulminante, sonable doubt.” con- errors lie “structural defects analy- mechanism, Under his stitution of the trial which Penny I violation sis, not a “trial defy analysis by stan- ‘harmless-error’ impossible error” it is for a re- because The existence of such dards.” defects— viewing “quantitatively” court assess counsel, deprivation right what affect the evidence would example requires automatic reversal — sentencing jury have had on the if it had they the conviction because infect granted the discretion to choose be- been process. entire trial our landmark Since Penny. tween a life or a death sentence for Chapman California, decision in we Instead, the defect is a defect[ ] “structural harmless-beyond-a-rea- mechanism, in the constitution of the trial in reviewing sonable-doubt standard analysis by ‘harmless-error’ deifies] claims of constitutional error of the trial standards. The entire conduct of the [sen- type. tencing] beginning obviously from to end is (alterations 629-30, 113 Id. at in S.Ct. in by” affected a structural defect the sen- (internal omitted). original) citations tencing framework. Consequently, Penny I held Accordingly, corpus in 1246. proceed- habeas Brecht, ings, pre-1991 capital sentencing after consti- even “structural” defects, tutional scheme was unconstitutional as opposed constitution- errors,” in always al “trial that case and made clear that a new are considered “prejudicial” per capital sentencing proceeding and reversible se. Re- the structur- subject repaired to enable viewing may courts them to al defect must be so as here, appropriate is Penny’s mitiga- penalty death jury fully consider impose and to decline of whether the same decision to question tion evidence if that sentence to it decided penalty death impose penalty the death “would have Penry’s in case. inappropriate be the constitutional been rendered absent utterly meaningless.” Id. “The error is violation in Pen- That the constitutional jury a most can conclude is that [we] a I this case resulted from “struc- ry surely that Nelson de- would susceptible to tural defect” that is not foundT penalty that the ac- serves the death analysis is even more clear- harmless error —not first ly by applying imposition penalty Justice Scalia’s tual of the death “would shown According to Sulli- analysis in Sullivan. surely not have been absent the different van, reviewing for harmless as a court constitutional error." Id. Such deter- are, error, to consider “not we instructed part present mination on our in the case might the constitutional error what effect nothing appellate would be more than upon a rea- generally expected to have jury’s speculation hypothetical about a ac- what effect it had jury, sonable but rather tion, meaningful appellate not a harmless ... in the case at hand upon the verdict analysis jury’s actual de- error of Nelson’s words, in inquiry, .... other is not penalty.16 the death impose termination to whether, [sentencing proceeding] in a conclu- Having foregoing reached the error, a penal- without the [death occurred study sions after additional and a better [imposed], but ty] surely would have been understanding applicable legal prin- actually im- penalty the [death whether ciples, acknowledge I must and correct the sentencing proceed- in posed] [capital ing] surely premise my unattributable to the er- errors in the and the of result Sullivan, ror.” separate panel opinion in this case. function of harm- proper 2078. Once the My my faulty initial error resulted understood, illogic less error review is “the (1) appreciation of the between correlation present of harmless-error review Court’s statement Johnson case becomes evident.” against standard which we as- “[t]he jury there has been no Since satisfy sess whether instructions evi- consideration of Nelson’s Eddings rule of Lockett and was set forth determining purposes dence for of whether Boyde necessary just for California.” penalty the death is 2658; case, and no decision

retribution his by analogy Boyde test in application appropri- indeed penalty that the death Johnson to determine whether there was case, premise “the entire ate violation; Penry I constitutional simply review is absent.” [harmless error] holding the Court’s Calderon Cole- fully Id. Because the could not con- man, sider the evidence and there (1998), upon

was no decision whether L.Ed.2d once the court aware, course, analysis. acknowledges, that Justice Scalia’s error As Sullivan am fully analysis analysis Sullivan is based on the Sixth is also consistent with Chief Amendment, general analysis Rehnquist’s more while violation is based Justice determining upon Eighth defect in the whether a constitutional viola- Amendment capital sentencing proceed- of a tion is a structural defect or trial error in framework Nevertheless, Fulminante, ing. that the teach- which is not tied to the Sixth I believe directly appli- any specific ings helpful and Amendment or to other constitu- of Sullivan are Sullivan, question Pemy See 508 U.S. at cable to the of whether a error tional amendment. 281-82, subject a to harmless 113 S.Ct. 2078. is structural defect not ously trial appeals performed thought had determined that the state what I was a a ambiguous proper court’s instruction was harmless error examination but Boyde trial error under the constitutional in reality which was an improper hypothe- test, apply it was bound to the harmless sization what the would have done by analysis error mandated Brecht it give had been enabled to effect to the issuing error harmful find the before by selecting the sen- corpus. writ of habeas From these deci- tence. sions, incorrectly I every concluded that reasons, deprivation For these of the I constitutional violation detected right defendant’s to a sentencing jury that Boyde of the test be a application will was able to consider and effect to all susceptible “trial error” to harmless error his relevant se- follow, however; analysis. This does not lecting the him appropriate sentence for contrary, probable on the it seems case, particular consequences with I most violations will be structural necessarily unquantifiable are and indeter- se, per defects that are reversible like the minate, unquestionably qualifies as “struc- present By defect case. its nature a defect”, tural not a “trial error.” Penry I violation consists of the absence of jury’s constitutionally required capabil- Conclusion

ity to consider and effect to relevant Therefore, I mitigating evidence. con- reasons, judg- For these I concur in the detecting clude after a constitutional majority opinion. ment test, by application Boyde error is necessary analyze the particular us JONES, EDITH H. Judge, Chief deficiency according constitutional JOLLY, SMITH, BARKSDALE, whom Supreme jurisprudential principles Court’s CLEMENT, GARZA and Judges, Circuit if it determine is structural defect join dissenting majority opinion: per is reversible se or trial error susceptible analy- to harmless error I. BACKGROUND sis under Brecht. Second, having erroneously concluded This court voted to rehear Nelson’s case analysis that a harmless error could be en because we are divided over how banc performed interpret on the structural defect this recent Court cases— II, case, Tennard, unintentionally compounded my Penry I and Smith —concern- by attempting apply ing pre-1991 penalty mistake the Brecht Texas’s death stat- years hypothesizing ago, test “to the of events that ute. Three we reheard the enterprise never fact occurred. Such an Robertson case en banc because we were factfinding, interpretation is not but closer to divination.” over divided Benitez, Dominguez penalty 124 Court’s Texas death case law lead- (2004) (Scalia, J., concurring). ing up including S.Ct. 2333 to and II.1 words, continuing signals In other I could not examine the mixed on issues jury’s criminal choosing importance decision the sentence of critical to Texas’s case, justice system It is to because the here never are unfortunate. Instead, that, certainty, hoped made such decision. errone- for the sake of we reheard the case en Graham Collins, banc for the same reason. Graham v. (5th Cir.1992) (en banc), aff'd, 950 F.2d 1009 338 relationship with jected him and he had no jurisprudence in the clarify its will (2) sired; certiorari.2 just granted intoxicated on which a child he had he was

cases alcohol when he committed by drugs and re- opinion grants habeas majority (3) crime; relation- he had troubled adjective. It on an lief to Nelson based (4) women; ships with his brother mitigating evi- concludes that Nelson’s by given “full effect” he suffered from a treatable borderline could not be dence inadequa- sentencing at due to up- has disorder. This court personality penalty Texas death cy pre-1991 against capital numerous sentences held concludes, It based issues. could not claims that similar evidence opinions, in the Court’s language some juries un- by Texas given sufficient effect effect,” effect,” just “some that “full pre-1991 statutes. The der the constitutionally ade- now the baseline frequently refused to review Court has miti- of a defendant’s quate evaluation decisions, prisoners were execut- those gating evidence. Today’s suggests a “sea ed.3 result surprising marks a re- conclusion This change”4 from those decisions and their petition governed sult in a habeas law. understanding of the Court’s case AEDPA, mandates affirmance of Second, majority’s reasoning implies convictions unless state state criminal cases, line of which was to, contrary or an decision was court’s “exception” described the Court as of, federal law. application unreasonable Jurek, “rule,” commencing First, proffered mitigating evi- Nelson constitutionality the overall of the Texas court has fre- dence of a sort that issues,5 has the “new sentencing his mother re- become quently encountered: Cir.2005), Collins, Dretke, (5th (1995); (5th F.2d F.3d Russell v. 998 1287 2. See Cole v. 418 494 denied, 1185, 1993), U.S. -, 114 Cir. cert. 510 U.S. granted, - 127 S.Ct. rt. ce 432, 1236, (1994); (2006); Callins v. S.Ct. 127 L.Ed.2d 580 307 Brewer Dret Cir.1993), Collins, (5th Cir.2006), ke, (5th v. F.2d 269 rt. granted, 998 cert. 442 F.3d 273 ce 1127, denied, 1141, U.S. -, 433, 510 U.S. 114 S.Ct. 127 L.Ed.2d 127 S.Ct. 166 - Collins, (1994); (2006). L.Ed.2d 435 Drew v. 964 F.2d 307 denied, 925, (5th Cir.), 411 cert. 509 U.S. 113 3044, (1993); S.Ct. 125 L.Ed.2d 730 Lince Johnson, See, e.g., v. 248 F.3d 3. Hernandez Collins, (5th Cir.), cum v. 958 F.2d 1271 cert. (5th Cir.), cert. denied sub nom. Hernan 344 957, 417, denied, 506 U.S. 113 S.Ct. 121 1043, 621, Cockrell, 534 U.S. 122 S.Ct. v. dez Collins, (1992); L.Ed.2d 340 Barnard v. 958 (2001); Emery v. 151 L.Ed.2d 543 Cir.1992), (5th denied, F.2d 634 rt. 506 U.S. Cir.1997), denied, (5th ce rt. 525 139 F.3d 191 ce 1057, 990, (1993); 113 S.Ct. 122 L.Ed.2d 142 969, 418, S.Ct. 142 L.Ed.2d 339 119 (5th Mayo Lynaugh, v. 893 F.2d 683 Cir. Scott, (5th Cir.), (1998); Davis v. 51 F.3d 457 Collins, 1990), Mayo v. sub nom. 992, 525, denied, modified S.Ct. cert. 516 U.S. 116 133 denied, (5th Cir.1990), 920 F.2d 251 cert. Scott, (1995); v. 31 F.3d L.Ed.2d 432 Jacobs 898, 272, 112 S.Ct. 116 L.Ed.2d 225 denied, (5th Cir.1994), cert. 513 U.S. 1067, 711, (1995); 130 L.Ed.2d 618 115 S.Ct. Scott, (5th Cir.1994), Lackey 28 F.3d 486 v. 350, Texas, v. 509 U.S. denied, 4. But Johnson 115 S.Ct. cert. 513 U.S. cf. Collins, 125 L.Ed.2d 290 (1995); v. 19 F.3d L.Ed.2d 644 Clark (stating that did not a sea denied, “effec[t] Cir.1994), (5th cert. 513 U.S. change in this court’s view of the constitution- (1994); Mot 130 L.Ed.2d 344 ality penalty Texas death stat- former Collins, (5th Cir.), ley cert. 18 F.3d 1223 Graham, ute”) (quoting denied, 901). Collins, (1994); Madden denied, (5th Cir.1994), cert. F.3d Graham,

339 Jurek, Franklin, Graham, II. THE “CLEARLY ESTABLISHED” rule” to which exceptions. Yet LAW and Johnson are now Penry as “not new is self-described preface, analysis this a closer With (which may means that rule” majority’s opinion begin. Billy can cases),6 and none of retroactively habeas Ray rejected petition Nelson’s habeas was altered that characteriza- progeny has by the state courts for reasons that had potently, Even more neither tion. nothing to do with this court’s now-aban II, Tennard, nor Smith overruled the oth- doned “constitutional relevance” If, however, “full effect” er line of cases. “uniquely evidentiary severe” thresholds. the test for evi- has become Dretke, See Tennard v. 542 124 U.S. dence, rather than “some effect” “within (2004). S.Ct. 159 L.Ed.2d 384 jury,” of the then the the effective reach thoughtful state courts conducted majority’s decision is irreconcilable with thorough analyses proffered of Nelson’s line the Jurek-Franklin-Johnson-Graham evidence, and determined that of cases. sufficiently all such evidence was encom passed by the former Texas issues the Su- This court cannot “underrule” Penry Lynaugh, v. and did not run afoul of duty Our is harmonize preme Court. 109 U.S. possible. as well as We are its decisions I). (1989) (Penry decisis, by the force of stare always bound Nevertheless, despite the demand- Kennedy to comment which caused Justice standard,”7 ing AEDPA “unreasonableness in Johnson majority now holds that Nelson is enti- Texas, and interests of the State of [t]he tled to relief because there was a “reason- it must vindi- rights of the victims whose able likelihood” that Nelson’s cate, ought not to be turned aside when prevented giving “full effect” to his upon interpretation the State relies mitigating evidence. Whether stan- Eighth approved Amendment something dard that of “full effect” or is Court, absent demonstration principal else is the issue before this court. our earlier cases were themselves a mis- Only year, today’s the author of ma- last constitutional interpretation of some jority opinion stated the test without command. relief on a gloss: grant “full effect” “To (1) Johnson, claim, at 2668 we must determine 509 U.S. at (citations omitted). whether the evidence has met 302, 315, such, application Lynaugh, the state court’s of federal unreasonable,” 106 L.Ed.2d 256 "objectively law must be as I). (Penry incorrect, opposed merely habeas relief for Williams, granted. to be 7. The fact that a federal habeas court would (emphasis original); 120 S.Ct. 1521-22 reached a different conclusion than did 782, 793, Penry v. see also to merit habeas the state court is insufficient 1910, 1919, 121 S.Ct. 150 L.Ed.2d 9 pursuant Pay relief ton, to AEDPA. See Brown v. II). (2001)(Penry Consequently, this court 133, 147, 1432, 1442, reasoning the erroneous of state overlooks (2005); Visciot Woodford courts, and reviews the reasonableness ti, Puckett, ultimate decision. Neal v. their (2002). L.Ed.2d 279 The Court in Williams banc), (5th Cir.2002)(en F.3d cert. that "an unreasonable was careful to note denied, application of federal law is different from an law,” and, application incorrect of federal as statute). relevance,’ and, so, no if There thus basis the ‘lowthreshold general as a matter that the Tex- conclude beyond the effec- the evidence was issues will fail to allow a Dretke, jury.” Bigby v. scope of the tive mitigating evidence. (5th Cir.2005) (Stew- weigh petitioner’s 551, 564-65 402 F.3d omitted). (citations J.) art, The constitu- special of the issues This assessment mitigating evi- tional relevance of Nelson’s Lynaugh, confirmed in Franklin v. was say But not at issue here. dence is 2320, 164, 108 S.Ct. upheld unless penalty must be

a death (1988), again as the Court “beyond the effective was such evidence constitutionality rejected challenge to the (and as jury,” Bigby as does scope of the In that case the special of the issues. advocates), is a much different this dissent argued mitigating petitioner could be than whether such evidence prison pre test good behavior while jury. given beyond “full effect” the in his defense had relevance sented issues, special particularly the second the every in- majority opinion cites issue, dan special which concerns “future of the Court—in opinions in which stance habeas, denying the gerousness.” the employed term dicta or dissents —have aspects” held that all “relevant Court Unfortunately, the course “full effect”. petitioner’s the character could be encom view, in our jurisprudence, the Court’s at passed by special the second issue. Id. than reliance on one complex far more important, at 108 S.Ct. 2329. More adjective suggest. —-“full”—would adequacy special commenting on the Texas, beginning, In the Jurek issues, the plurality qualified broad 49 L.Ed.2d 929 Oklahoma, Eddings statement (1976), upheld the con- (1982), 102 S.Ct. 869 issues, special stitutionality of the Texas sentencing jury may precluded not be sentencing per- that Texas’s scheme noting relevant, considering “any mitigating from whatever evi- mitted the to “consider view, plurality’s In the Ed- evidence.” circumstances the de- mitigating dence of dings prevent and Lockett did not a state at bring can before it.” Id. fense “structuring giving shape from were special at 2957. The issues S.Ct. ... fac jury’s mitigating consideration of of miti- preclude seen to the consideration Franklin, 179, 108 tors.” 487 U.S. at S.Ct. rather, evidence, gating served but rejected con at 2330. The Court thus jury’s objective “guide[ and' ] focus[ ] allowing that a catch-all instruction tention circum- particularized consideration of the jury an basis for render independent offense stances of the individual ing a sentence other than death was neces individual offender.” Id. at sary, such an instruction would overrule as focusing at seen as benefi- 2957. Such was n. Jurek. 180 & cial, promoted it evenhandedness had approved 2330 & n. 10. Jurek jury, allowed an individualized assessment issues, and the had special Texas guarded culpability, of the defendant’s repeatedly approval referred with Tex Franklin, scheme, Lockett v. against arbitrary results. sentencing as’s see Cf.

Ohio, 586, 605-06, n. at 2331 n. 11 U.S. at 182 cases), (invalidating (citing precisely because recon altogether penalty death ciled the twin concerns for statuto Ohio statute jury flexibility prevented considering ry structuring from rele- and for evidence; mitigating evidence. Justice vant the Ohio statute consider judgment unfavorably concurrence explicitly to the O’Connor’s compared tually any her view in I that Jwrek presaged capable evidence is that, particu- a “claim in a preclude did not being having viewed as bearing some case,” special lar issues were constitu- culpability’ defendant’s ‘moral apart tionally inadequate. Penry from particular its relevance to the con- However, cerns embodied in the special Texas is- Franklin, including Justice O’Connor’s sues.” 113 S.Ct. at 902. concurrence, it is clear that the Again, Jurek, citing Franklin and ought issues to be constitu- Court determined that pen- Texas’s death majority tional in the vast of cases. alty statute allowed evidence to adequately be permissi- considered while Ultimately, question exactly of what bly focusing the considerations of the sen- for a court to “full consider- means Graham, tencing jury. a majority a petitioner’s mitigating ation” to habeas opinion, thus proposition evidence was answered in the cases of stands for the Collins, 461, jury may v. that a Texas constitutionally Graham 506 U.S. 113 S.Ct. ren- 892, (1993), 122 L.Ed.2d 260 and Johnson der a sentence death even where a Texas, 350, 2658, 509 U.S. 113 S.Ct. presents mitigating defendant (1993). Although Graham that has arguable beyond some relevance collateral, came to the Court on the special issues. direct, review, as opposed and was thus later, majority Just months of the Lane, subject analysis Teague under reasoning Court Johnson reaffirmed the 109 S.Ct. Graham, appeal in a direct in which the (1989), the case in- was nevertheless appellant’s youth as an offender was his in explaining sufficiency strumental of major mitigating quality. Justice Kenne- case, penalty state death statutes. In that Graham, dy’s opinion heavily drew petitioner argued evidence of his re-emphasizing that while youth upbringing and transient had miti- Eddings prevent Lockett and a state gating impact beyond special issues. from placing relevant evi- contention, rejected again beyond dence the effective reach of the turning penalty to Jwrek. Death statutes sentencer, ... we have held that there is only supply had to the defendant with a requirement no ... un- constitutional “constitutionally adequate” consideration sentencing fettered in the discretion evidence, of his which Texas’s jury, and states free to are structure Graham, special issues did. at shape mitigating evidence in an ef- majority 113 S.Ct. at 899. The ex- fort to equi- achieve more rational and Lockett, plained Eddings, Skipper,-8Hitch- table of the penal- administration death cock,9 being I as constitutional- ty.

ly defective because “relevant S.Ct. at 2666 placed beyond evidence was the effective (citations and internal marks quotation jury.” reach of the at omitted). con Recapitulating fact that cases 902. The the defendant’s evi- issues, struing might arguable special dence Texas’s the Court “some rele- beyond interpretation vance” confirmed a narrow of Pen- special issues did not [Jurek, special ry “making invalidate the it clear Lockett issues. Id. at 475- at Eddings] together 113 S.Ct. 902. This is because “vir- can stand Pen- with Carolina, Skipper Dugger, v. South 9. Hitchcock v. (1987). L.Ed.2d consequences of his actions or at 2667-68. The ate the Id. 11/.” in- from his mistakes. Unlike the youthfulness as learn closely analyzed case, suggestion that “there is there was no and held stant mitigating factor improve; of future his brain Penry’s in the assessment condition would ample room juror take account allegedly permanent. Such dangerousness damage ” Id. Pen- youth Penry’s .... might difficulties of have diminished of the contrast, condition, indicate, him rendered ry’s it also served to culpability, but from his mistakes always unable to learn that he would agreed, as all sides aggravate, such, considered to society. could be a threat As lessen, dangerousness.10 his future dangerousness” spe- regard to the “future issue, “only Penry’s cial evidence served concluded Johnson with the

The Court Id. aggravating jury. factor” for the Graham, observation, originating The defense found if, Jurek would have to be overruled when- position arguing itself in the unenviable mitigating evi- proffers a defendant ever “juror that a should vote ‘no’ one dence “that has some arguable relevance issues,” if a fourth issues even she believed beyond required. should mitigation proved would be State had the answer issue ” issue, Id. at at at 2671. Such at 2950. The ‘yes.’ S.Ct. 109 S.Ct. reasoned, effectively would ju- as the Court in turn stressed “the prosecution power, repeatedly af- abrogate law, the state’s rors had taken an oath to follow the Court, the con- by firmed the to structure they and that must follow the instruc- mitigating sideration of evidence. tions.” Id. This created a uniquely unfor- ju- tunate situation which reasonable majority opin- Graham Johnson are ror could credit the I Penry of the Court.11 is also ions than and feel a sentence other death was Pemy I represented majority opinion, but Penry, yet nevertheless be warranted to the Jurek line fact-specific exception special to answer the issues in compelled abundantly clear of cases. This was made and render a sentence of Graham, the affirmative at at S.Ct. Johnson, death. Unlike Graham Penry I from the distinguished 902. What juries ability that, the had the to at according which cases was aforementioned least “some effect” to the evi- Penry’s extremely poor had experts, to he defendants, control, and, presented his limited dence the was owing to impulse abilities, “impossible give meaningful mitigating to appreci- mental he was unable jury quoted has decided that the defendant’s The Court Justice Brennan's dis- 10. sufficiently egregious were to war- acknowledged actions Blystone, sent rant death. ability special issues to afford of the Blystone (quoting moral cul- consideration of defendant's 299, 322, Pennsylvania, pability: (1990) (Bren- require issues] two [The J., nan, dissenting)). legis- supporting a than find facts do more latively aggravating defined circumstance. Johnson, Notably, in both Graham Instead, by focusing on the deliberateness spirited capture over dissents the same debate and his future of the defendant's actions preoccu- effect” that "full effect” and "some compel dangerousness, questions still; pies effect” us but the advocates of "full Graham, See, judgment jury to a moral about e.g., make lost. J., Johnson, (Souter, dissenting); severity the defendant’s of the crime and S.Ct. at 917 (O'Con- at 2672. culpability. Texas statute directs 509 U.S. at The nor, J., dissenting). imposition penalty after of the death through dangerousness, ness and future he Penry’s was effect” Graham, 506 U.S. at culpable issues. less because of his mental retar- Penry I had at 901. opinion dation. The “full Court’s mentions the view that expressing “no vehicle for once, overruling effect” its but the nulli- Penry did not deserve to be sentenced fication instruction was not tied to whether Penry 492 U.S. at death.” Penry’s could “full effect” to at 2951.12 jurors’ evidence. The catch-22 independent was amount miti- Penry, Graham “In quote again: To gating effect. placed evidence was before the defendant’s no reli- but the sentencer had sentencer Tennard, In the Court held that means able giving mitigating “uniquely permanent Fifth Circuit’s severe Graham, 506 U.S. at that evidence.” handicap” identifying and “nexus” tests for added). Penry (emphasis 113 S. Ct at 902 Penry evidence were incorrect, and that

I ... scope,” thus “limited [in] purposes, jurists for COA “reasonable otherwise, it could not be consistent with would wrong find debatable or the District Lockett, Jurek of which were both low-IQ- disposition of Tennard’s repeatedly reaffirmed the Court. Tennard, based claim.” 113 S.Ct. at Tennard Indeed, at 2573. short, “clearly established petitioner’s IQ found low evidence not, majority law” as of 1994 is as the had “the same essential features” as Pen- I “full effect” test, but argue, ry’s mental retardation low evidence: His together instead consists IQ could to miti- be considered irrelevant Graham, Johnson, Franklin, and Jurek. gation having only aggravating while rele- subsequent decisions The Court’s Id. dangerousness. to his vance future II, Dretke, v. Penry Tennard v. Smith Tennard did at 2572. 113 S.Ct. waters, they Texas have muddied the but cite Graham or Johnson. Because the overruled, replaced, have not much less expressly analysis models its decision Jurek, Franklin, Graham, and Johnson. I, Penry Penry it cannot be said to extend a Each of the more recent cases resolves I or to undercut Graham or Johnson. Penry II consid- issue. procedural narrow does Tennard require Nowhere sufficiency a “nullification in- ered the jury mitigat- to “full effect” to be able jury that Texas courts struction” to the sentencing in its delibera- ing evidence thought problem would alleviate the Instead, quotes pot- a tions. the Court why Penry’s explained case. The Court requiring states pourri of earlier decisions cause the nullification instruction would felt, “consider and to enable the to jurors they to violate their oaths if evidence;13 forbidding mitigating effect to” notwithstanding Penry’s condition re- from con- “preclude to states to the sentencer quired positive a answer his deliberate- only reading Penry entirely S.Ct. at 1923. It is 12. This I is consis- id. with, a finds anticipates, these rare circumstances that tent and indeed the Court's provide a “reasoned Penry itself without vehicle later decision in response” moral to the defendant's evidence. II). (2001)(Penry Penry Penry As with II 370, 377-78, rejected “arbitrary” penalty California, Boyde a death encourage juror pro- system that would 108 L.Ed.2d 316 special Boyde discretion could vide a "false answer” to one of the held issues, juror. guided by thereby violating as a the States. his oath evi- “full effect” to defendant’s cir- sidering any ‘relevant paragraph cumstances. In the third ”;14 asserting virtually no limits dence’ decision, the “Approxi- Court states: ability proffer relevant on a defendant’s trial, mately years prior had two we compels Tennard evidence.15 presenting special held that these two IQ with low evi- Texas courts confronted issues, additional instructions without re- issue; proper dence to submit jury’s duty mitiga- garding the consider fact-specific evalua- Tennard also counsels evidence, Eighth tion Amend- violated mitigation evidence petitioners’ tion of (citation at 402 ment.” Id. pre-1991 within the application omitted). explaining plain After er- special issues. decision, in the court’s rors state A final word about Tennard: Justice II, that: Smith Court states “as Kennedy concurred. Does this mean that proof the burden of on the State was tied changed his mind since he wrote he had findings law to of deliberateness and Johnson, or that he viewed Tennard as little, dangerousness future that had if A “reasonable reconcilable with Johnson? anything, mitigation to do with the evi- conclusion, jurist” draw the latter would petitioner presented.” dence Id. at hardly Ken- since one can assume Justice (footnote omitted). 125 S.Ct. at 407 explain failed to his de- nedy would have mitigation po- Smith’s evidence included very explicit cabining of from the parture tentially organic learning disabilities and accomplished that he with the Penry I IQ speech handicaps; low and edu- majority opinion Johnson. school; school; good cation in behavior in Texas, father; drug-addicted criminal and his Smith v. (2004), age of nineteen at the date of the offense. is the most concludes, analysis of the it, too, Smith without line, case in the recent evidence, that types mitigating because holding. represents procedural a narrow mitigation it was “relevant evidence for a Texas Court of The Court reversed under Tennard that utilized the Appeals Criminal decision inadequate un- nullification instruction was adopted relevance” tests “constitutional Penry II. 125 S.Ct. at der Tennard, rejected in the Fifth Circuit but 407. distinguish a nullification purported and to the instruction overruled

instruction from may poten- not This court overlook the II. That Penry tially On the language broad Smith. decisions prior the Court would enforce its hand, to other Smith failed cite distin- hardly is sur- per Jurek, Franklin, Graham, curiam reversal guish or John- employ would That the Court prising. Rehnquist son. Chief Justice and Since opinion expand Smith, such a to the reach brief Kennedy joined ques- Justice and Penry they and undermine Graham again tion arises whether did so unlikely. just The ma- Johnson sub silentio is to a limited view of deference also, language sup- jority points Penry in this case to II and Tennard but and with- ini- “unlikely” reading. overruling to a de facto porting explanation, Smith out through ca- tially quotes Penry holding II as a similar and Johnson Smith’s Graham youth, incorporation appellant’s to inadequate nullification instruction en- sual behavior, disadvantaged and good and school give able a “full consideration” 104, 114, Oklahoma, Tennessee, Eddings Payne (1982). (1991). 71 L.Ed.2d 1 (not abused) Penry mitigation as aggravating beyond childhood force the issues evidence. of deliberateness and dangerous- future ness, re-sentencing required. In such Finally, notwithstanding Smith’s two cases, proffered “beyond evidence was effect,” “full opinion references to also jury” the effective reach of the such that recognizing II that “the quotes Penry as precluded “the from considering I is that the be able key under Third, the evidence.” evidence of such and defen- [a ‘consider qualities youthfulness defendant’s mitigation imposing dant’s evidence] ” the date the crime and a “transient” Smith, sentence.’ can, however, upbringing16 be considered (emphasis original). S.Ct. at 406 within issues. “Giving effect” to evidence is allowing not the same as III. THE MITIGATING EVIDENCE formulation, in “full effect.” The latter (i) Nelson offered in evidence that effect, his rejects ability a state’s to focus the (2) him; rejected mother he had troubled jury’s consideration of evidence. relationships women; with his brother and Here lies the crux of our difference with (3) he relationship was denied a with his today’s majority opinion. Despite its ef child; by drugs he was intoxicated and procedural forts to turn narrow decisions crime; alcohol when he committed the imprecise language into a constitution effect,” he suffered from a treatable borderline al mandate of “full personality majority disorder. The opin- support case law will not that con element, ion court, principally dwells on the last can clusion. As inferior we over subsidiarily rejection mother, Jurek, Franklin, Graham, on the look neither II, and not at all on Nelson’s substance abuse nor Ten- relationships. or other troubled Conse- Sadly, nard and for the Smith. State decisis, quently, we focus on the first two charac- Texas, certainty for and stare out, pointed though, teristics. It must be for defendants who deserve to their know minute, majority’s appar- “full effect” test fate before the last we no seem ently pre-1991 renders the Texas sentenc- along understanding further the Court’s ing hearing constitutionally inadequate for today pronouncements than we were fif any mitigating except youth- years ago teen when we reheard Graham (and Collins, good prison).17 fulness behavior in en banc. Graham v. 950 F.2d See all, (5th Cir.1992) (en nearly any After banc), mitigating evidence aff'd, arguable can be said have “some rele- beyond the fu- vance” deliberateness and dangerousness inquiries. ture The interrelated rules we believe must Hickman, holistically expert, drawn from the Court’s de- Nelson’s Dr. testified resulting cisions—until we told that had anger are otherwise—are Nelson issues First, as all that experiences, follows: courts must consider his childhood and comprehensibili- personality evidence for its treatment for his borderline ty special require long-term psycho- within the Texas issues. Sec- disorder would ond, if, therapy as with I and Tennard low and medication. Hickman also evidence, IQ proffered suggested evidence has that individuals with borderline Graham, Franklin, 16. See S.Ct. at See 487 U.S. at 179 n. 17. 902. 9. 2330 n. crime, problems to to and found

personality tend be difficult this disorder crime to treat, with was not be “deliberate.” and success Nelson However, Hickman further guaranteed. presented jury Nelson’s was also treated, successfully that if Nel- testified future regard clear alternatives in to dan- represent danger to longer son no would gerousness. It could believe Hickman’s society. testimony conclude that Nelson and was morally fundamentally culpable, given dis- less his mental ill- Nelson’s evidence ness, treatment, and Penry, proper from that who was that with Nel- tinguishable being beyond son would a future presented present danger. treatment be- not acuity Alternatively, jury mental and could follow the cause of an insufficient prosecution’s theory from his inability fully to learn mistakes. Nelson contrast, for jury culpable defense offered the his actions and would continue Nelson’s better, get dangerous could to be in prison.18 evidence that Nelson even That the jury if the rest of his life chose the latter assessment of spent he Nelson prison, longer represent no does not mean that habeas relief he would must Indeed, society. Penry, danger future Unlike issue. order even make a Graham, plausible argument but Nel- that a like the defendant violation case, honestly attorneys “vigor- majority could occurred in the instant son’s suggest recasts the ously urge[ answer ‘no’to record to Nelson ] upon” simply issues based the evidence would be untreatable. This is not Graham, presented. purpose 113 the case. Dr. for Hickman’s testi- fying just S.Ct. at 902. was not to illustrate Nelson’s potential condition but to demonstrate his regard to the “deliberateness” of With change. clearly potential That found crime, Nelson’s could have con- expression both “deliber- cluded, maternally-deprived based on his dangerousness” ateness” “future is- issues” upbringing, “anger poor his and his sues.19 control, that did impulse sexually he abuse his victims and murder Charla Because case is reviewed under AEDPA, was, must, “deliberately.” majority Wheat He in other as the we ac- words, warped knowledges, too to have responsi- acted find the state courts’ resolu- bly. Alternatively, could have tion of the not simply wrong, issue Further, against balanced these factors but unreasonable. the “unrea- drug self-induced abuse and intoxi- sonableness” stem from a must here con- cation, speculation and the in clusion embodied that there is a “reasonable likeli- connecting possibility” Dr. Hickman’s hood”—not a his behavioral “mere —that agree prosecution The did not with Hick- concluded that Nelson's men- if of Nelson’s man's assessment tion, mental condi- aggravating tal illness had effect as as it did not sufficient evidence to issues, possible then is it diagnosis. expert, Grigson, make a Its Dr. jury might compelled to have felt answer only that Nelson concluded would continue "yes” dangerousness special as to the future pose a threat. issue, jury wished a sentence even if the other than borderline death due to Nelson’s condi- majority string upon further relies jury theory This tion. attenuated of the delib- Penry hypotheticals to create its violation. If Penry beyond erations its extends I far intend- jury believed that Nelson from suffered boundaries, ed without instructions from the disorder; personality jury borderline if Supreme Court. believed Nelson was untreatable proper prison; would not receive treatment in way “in a resembles jury applied age, the two issues Jurek’s evidence of em- the consideration of constitution- prevents ployment history, and familial than ties Johnson, relevant evidence.” ally Penry’s it does evidence of mental retar- (paraphrasing at 113 S.Ct. at 2669 physical dation and harsh abuse. 1198). at at

Boyde, Graham, 902. ap- likelihood” standard is The “reasonable Court, course, The held in Graham plied according to a “eommonsense under- require that to additional instruc- standing light of the record in the of all tion would be “new rule” of constitutional place that has taken at the trial.” Id. at pretend law. We do not that Nelson’s Finally, 110 S.Ct. at 1198. the fact personality evidence of disorder and ma- juror that “a ... might view rejection Jtvrek, ternal is on all fours aggravating, opposed mitigating, as Franklin, Graham, or Johnson. But the does not mean that the rule of Lockett is majority pretend cannot that such evi- Johnson, violated.” dence—of a treatable mental condition and above, at 2669. As illustrated there physical not compels “harsh habe- abuse”— is no reasonable likelihood that II, as relief Penry based on Ten- in an special issues unconstitu- nard or Smith.20 manner; expressing tional “reasoned evidence, response” moral to Nelson’s Reinforcing our conclusion is incon- upon could have relied Hickman’s tes- sistency majority’s analysis between the timony and concluded that Nelson would a today treatable mental disorder and our danger prison. not remain a Based on analysis court’s of an untreatable mental interpretation our that Johnson and Gra- year schizophrenia—a ago. condition— law, good coexisting ham remain with Pen- (5th Dretke, Bigby See 402 F.3d 551 ry cannot progeny, and its we subscribe Cir.2005). Today’s majority overrules the unreasonableness state courts’ decision in Lucas v. F.3d determination. (5th Cir.1998), which held that Clearly, the evidence of a treatable men- special issues furnished sufficient deprived family tal condition and a back- scope for a decisive,

ground per- if could be afforded of a treatable mental condition. “full,” haps effect under the year, Bigby, Last the author 1082-83. pre-1991 sentencing scheme. The Court today’s opinion distinguished Lucas be- stated in Graham: cause of the different ramifications of a treatable mental disorder under the Texas regard

We see no reason to the circum- If family background Bigby, stances of issues. 402 F.3d 571. Graham’s positive Bigby character traits in a differ- found no conflict between Lucas and line, light ent Graham’s ev- the Court’s decisions in the [from Franklin]. majority today that a upbringing idence of transient his how can the assert [while spent long periods hospitalized comparable mother decision the Texas courts closely for a “nervous more was “unreasonable?”21 condition”] Graham, holding Teague, case based on state court's decision unreason- able? is that I did not dictate constitutional youthfulness. relief based on the defendant's squarely Today's majority is also decision then, How, could the different evidence of a contrary to the recent decision in Cole v. have become so in- treatable mental disorder Dretke, (5th Cir.2005) cert. 418 F.3d 494 distinguishable Penry as to render the granted, that the “Texas issues allowed rehearing, or hold a case grant en banc CONCLUSION IV. Presumably the instant case indefinitely. constitutionally had Nelson’s (Nelson) to reconcile was taken en banc to of the effect as both adequate mitigating is, Penny jurisprudence this circuit’s —that neither issues, and his was Penny-related to harmonize our numerous the evi- giving to foreclosed from opaque cases with each other and with issues, nor by the Texas dence Supreme Court.1 pronouncements rendering false position in the put true, if one would think But that were verdict, II. If Penny Penny in I and finalizing up want to hold on court would Penny reading of majority’s expansive Penny until the en banc any decisions today, it is to compels the result reached Instead, we have had a spoken. court has Supreme will so hoped Penny of actions on our various potpourri now definitively the cases inform us plan step Any cases. well-intentioned none of the before it. Because pending our Pen- comprehensively review back compels precedents date Court’s and burned. ny jurisprudence has crashed “full test or the result reached effect” of the time line in this An examination majority, it cannot be said to the confu Penny only court’s cases adds federal unreasonably applied state courts panel decision Nelson was sion. relief, and deny I habeas law. would August 2003.2 The issued therefore, I respectfully dissent. Dretke, 542 Tennard v. U.S. Court issued 274, 124 S.Ct. 159 L.Ed.2d 384 SMITH, Judge, E. Circuit JERRY (2004), days later on June 2004. Four dissenting: certiorari, vacated, granted the Court enthusiastically join superb dis- Nelson “for further consider remanded ”3 senting opinions penned respectively .... light ation in of Tennard Judges Judge Chief Jones Clement Nelson, court remand this issued On separately, not to I dissent and Owen. 1, 2006, stating on March panel opinion its high- merits of this case but to discuss the penalty death case is reconsid- “[t]his tangle embarrassing procedural light in- pursuant ered by the various actions of the Su- caused following summary grant struction in Penny-relat- and this court preme Court vacating prior of our certiorari and the ed cases. .”4 pe- ... No opinion based on Tennard cases, Penny rehearing court has been en rehearing In its this tition for or for (1) fi- deciding whether to was ever filed Nelson. Nonethe- inconsistent banc court, mandate, less, “on on March nalize a case and issue 11, 2006) (U.S. finding by (reversing a Dec. consideration and full 'full ” Cole's evidence of the state court had effect’ the Ninth Circuit that family background. at 511. unreasonably clearly destructive Nevertheless, established Fed- today’s majori- law). two members eral ty panel joined the Cole decision. Cockrell, Fed.Appx. v. See Nelson explication of its habeas 1.In its most recent Cir.2003). (5th jurisprudence, reminded corpus has interpreting "clearly established us that Dretke, U.S. 3. Nelson v. 2254(d)(1), § 28 U.S.C. Federal law” under (June 2004). holdings we Court's and not 05-785, look Musladin, Carey No. its dicta. — Dretke, (5th *8-*9, 442 F.3d 4. Nelson LEXIS Cir.2006). -,

349 motion,” poll, rehearing to rehear Nel- denied en own voted banc over a strong following son en bane.5 dissent included the responsible, statement: “The efficient and Tennard, promi- In which is most just course ... would have ... been for us case, how- recent Fifth Circuit nent promptly to resolve en important banc the ever, held the mandate to await judge no by panel issues raised the Cole decision in is an en banc decision Nelson. Tennard possible and allow time for correction of our current significant the most our permitting before Supreme Court vacated cases because the penalty other death panels numerous and, in an panel opinion opinion generate more decisions without either en O’Connor, rebuked this court for Justice guid- banc or renewed Penry questions.6 re- approach On days ance.”9 This four after the court was Tennard, panel in a Fifth Circuit mand in 1, 2006, granted had en banc review Nelson. March opinion issued its on coincidentally day panel the same Dretke, pending Also is Coble v. Nelson, light in in opinion remanded (5th Cir.2006), panel, F.3d 345 in which the Tennard, Yet, judge also issued.7 no held vacating opinion it had in issued Coble Tennard, in and no effort was the mandate (5th Dretke, Cir.2005), v. 417 F.3d 508 took Tennard made either to reconsider en specific account of the Supreme Court’s put pending banc or to that case on hold Texas, decisions in Tennard and v. Smith en banc review in Nelson. One can 400, 160 guess significant that a fact for some (Nov. 2004) curiam), in (per affirming judges petitioner had habeas A petition.10 the dismissal the habeas Tennard', in prevailed on remand more- in judge placed hold on the mandate (the state) over, losing party did not August through Coble from March petition rehearing. for 22, 2006, 17, 2006, again July Other cases of note were active A present. petition rehearing en 15, 2004, this time. On November Coble, pending banc is but there has Supreme Court had vacated and remanded poll. been no en banc (5th Dretke, Fed.Appx. Cole v. Cir. 2004) similarly Somewhat situated to Coble is curiam), May (per for reconsider case, panel issued the Breiver which the light panel ation Tennard.8 The is opinion May its initial 2005.11 On opinion sued its on remand Cole v. Dret (5th ke, 22, 2005), judge placed June hold on July 418 F.3d 494 Cir. it in the mandate and has not released judgment denying habeas

and affirmed the (5th Dretke, intervening eighteen months. On March relief. Cole v. 443 F.3d 2006) Mar.17, curiam), however, day panel opinion 2006—the same (per Cir. Nelson, court, panel, in Brewer v. and unlike in after issued Nelson—the Dretke, Cole, (Dennis, J., (5th dissenting at 443 5. Nelson 442 F.3d Cir. 9. 443 F.3d v. 13, 2006) curiam). banc). (per rehearing Mar. en from denial of Tennard, 6. See Coble, 444 F.3d at 358 n. 11. (2004) (O’Connor, J.). 159 L.Ed.2d 384 Dretke, (5th Dretke, (5th v. 410 F.3d 773 Cir. 11. See Brewer Cir. 7. See Tennard F.3d Mar.l, 2006). 2005). May Dretke, See Abdul-Kabir (5th Cir.2006) banc the issuance of the en part, least Dretke, (per 442 F.3d in Nelson. re- decision curiam), petition panel for denied the petition on the no action hearing (taking jurisdictional no bar Su There is banc), opin- its rehearing en withdrew for of non-final cases preme Court review petition A for ion, a new one. and issued it is unusua appeals, from the courts of but in pending en remains rehearing banc Court, granting in re Perhaps l.15 Brewer. non-finality in despite its view in Brewer court, by Brewer’s in is, was influenced finally, Garcia v. this there And then (5th “court’s intervention is July sistence Quarterman, F.3d 463 Cir. once and 2006). again necessary to resolve once panel grappled There the in courts enduring all the confusion court’s relevant for and with this Tennard scope Penry.’16 regarding v. caselaw, Bigby Brewer and below including Brewer, (5th Coble, Mar.8, Yet, Dretke, postures Cir. 402 F.3d — denied, -, in this court: In all 2005), 126 Garcia are the same U.S. cert. (2005). three, opinions denying habeas relief panel A 163 L.Ed.2d issued, rehearing petitions been for July in Garcia on have judge held the mandate filed, and the mandates rehearing for en en banc been petition and a stayed. have been The difference pending. banc remains on a petitioner, that in Brewer the based responses Supreme The Court’s procedural mistaken view status perplexing foregoing have been somewhat appeals, case in the court of filed (2004) opin of its latest after the issuance petition and has been rewarded certiorari surprising de ion in Tennard. The most reason) (for Supreme whatever with the velopment is that on October grant of review. Court’s certio- granted petition for writ of Court tri- Supreme has scheduled a peculiar, in This is because rari Brewer.12 argument fecta of cases for on Jan- yet the Fifth Circuit has not Brewer day it uary granted 2007. The same petition rehearing on the for en banc acted Cole, Brewer, so in Possibly certiorari it also did and has not issued the mandate. for ar- inaccurate with Cole and Brewer consolidated High relied on the cer- gument.17 granting One week before petition in Brewer’s certiorari statement Cole, the Court rehearing en banc tiorari in Brewer and “petition that his for fact, in a case from the eventually granted our or review denied.”13 willing- specifi Texas state courts.18 The Court’s withdrawing opinion the first der Penry questions once petition panel for ness to address cally stated that “[t]he Perhaps High again is welcome. rehearing is DENIED.”14 Brewer re court, tongue-lashing like the awaiting, at Court will issue pending mains — Certiorari, Quarterman, —, supra, at 16. Petition for Writ of U.S. 12. See Brewer (2006). - Quarterman, 17. See Abdul-Kabir Writ of Certiorari in No. 05- 13. Petition for -, (2006). 166 L.Ed.2d 307 Quarterman, at 2. Brewerv. added). Brewer, (emphasis 442 F.3d at 275 Smith, (Tex.Crim.App. parte 18. See Ex 185 S.W.3d 455 - .1, 2006), granted, cert. Mar Supreme 15. Robert L. Stern et Court Prac- al., -, ed.2002) (8th (citing U.S.C. tice 75-78 1254(1)). § penned petition rehearing, in Tennard.19 benefit of a O’Connor and now one Justice so, despite issuing If it will this court’s honest has insisted on majority be en banc sundry pro- attempts apply opinion predictable Nelson without the nouncements. guidance that will come from the Court’s review in the cases to argued wisely Judge As Chief Jones states January 17. The en majority’s banc Nelson, her dissent in court cannot “[t]his is, judgment sense, rush to truly duty Court. Our ‘underrule’ regrettable, respectfully and I dissent. harmonize decisions as well as is to always possible. are bound We maybe,

force of stare decisis.” So on the CLEMENT, EDITH BROWN Circuit hand, the current will deter- other JONES, Judge, with whom Judge, Chief court, panels mine that the various of this JOLLY, SMITH, and BARKSDALE and above, in the cases discussed have correct- GARZA, Judges, join Circuit dissenting ly applied precedents, my the Court’s majority from the opinion: dissenting colleagues show in their able requires AEDPA us to defer to the state opinions. habeas court’s determination that the regard, this is unfortunate prevented was not all considering majority in en banc Nelson has insisted on mitigating evidence within special is- time, majority issuing opinion its holding sues because that is neither con- grants I the wake of the of ceHiorari that trary to nor an application unreasonable of Instead, have noted. this court should Supreme precedent.1 Accordingly, rehearing have denied en banc all the respectfully I dissent. {Nelson, Brewer, Cole, recent cases many this court had While has occasions Coble, Garcia), and as to so the Su- generally, to address issues the Su- preme option picking Court the various preme spoken relatively very Court has By piece- ones of them for our review. present- few times on contentious issue approach, meal inconsistent we have (youth, ly employment before us: Jurek incongruous situation of some cases not, history, family), (good aid to Franklin be- and others and of some held with (mental not, prison), Penry havior in I & II petitions ceHiorari and some and last- {Nelson) retardation, abuse), (youth, child ly of a case in which this court Graham granted upbringing, good en banc without even the transient character review "Despite paying lipservice principles quotes following 1. The district court lan- COA, guiding issuance ... Cir- guage Fifth from the state habeas court's decision: gloss ... cuit invoked own restrictive jury charge "The and the issues al- Tennard, Penry ....” 542 U.S. jurors presented lowed the effect to all S.Ct. 2562. "The Circuit's test has no Fifth mitigating evidence answers to the in their foundation in the decisions of this Court.” special issues ....” D. Ct. Order at 37. A 124 S.Ct. 2562. Fifth Id. "The Circuit statement, precise per Boyde more v. Califor- wrong was likewise to have refused to consid- nia, debatability Penry question er the (1990), L.Ed.2d 316 would have been that 124 S.Ct. 2562. Fifth Cir- "[T]he there is no reasonable likelihood that the screening prece- cuit's test has no basis in our way pre- issues in a ” interesting .... It to note dents considering mitigat- vented it from Nelson’s repeated Justice O'Connor’s reference to this Nonetheless, ing there is no mate- evidence. Appeals,” court as "the Court of but as purposes of our review. rial difference for Circuit,” apparently emphasize "the Fifth pique. her obvious (consti-

traits),2 (youth), Payton, Brown Tennard Johnson IQ), relevance, low (2005), tutional and Smith is on-point (constitutional relevance, Penry II instruc- emphasis more than ma deserves tion, learning disability, youth, organic low There, jority opinion grants it. the Cali school, IQ, good drug-addicted behavior Court, fornia Supreme applying Boyde v. father). specifi- those cases None of deal California, cally type mitigating (1990), had held that (re- ie., Nelson, familial discord offered there was no reasonable likelihood that the mother, jection his by his trouble with required disregard it was believed brother, inability illegiti- relate to petitioner’s mitigating evidence while child), drug mate and alcohol addiction applying Payton, instructions.4 abuse, treatable) (theoretically border- S.Ct. 1432. The Ninth Further, none personality line disorder. Circuit, concluding the state court gave those cases Court the erred, unreasonably granted habeas relief.5 opportunity apply before us—to —now at Stringently Id. 125 S.Ct. 1432. focus on principles AEDPA the reason- applying AEDPA’s deferential standard of ruling of the state court’s rather ableness review, Supreme the Court reversed the petitioner’s than claim.3 the merits Ninth at Circuit. Id. 125 S.Ct. has Supreme spoken Court Since the that, 1432. The held AED- Court under type mitigating of evidence precise “[ejven PA, assumption on the that [the certainly at here—and had not done issue incorrect, state conclusion was it court’s] by 1994, so Nelson’s conviction be- when unreasonable, just was not and is therefore that, difficult say came final—it will be type the of decision that AEDPA shields AEDPA, under act- the state habeas court on habeas review.” Id. at contrary unreasonably applied ed to or Breyer Concurring, 1432. Justice federal stated Supreme law as determined the that, view, Supreme my Court. “In is a case The decision in which Graham, notes, opinion majority challenged 4. as the instructions included the instruction,” (k) "factor merely precedent which California’s held that 1984 did not version a catch-all instruction. "[I]t of direct- petitioner granted dictate that the should be jurors any ed to consider other circumstance potentially mitigating relief evi- based on gravity extenuates the crime dence. though legal even it is not a excuse for the Payton, crime.” Only Penry are post-AEDPA II and Tennard (internal quotation marks and alteration majority opinion's cases. The federal habeas omitted). "catch-all,” though Even called a "fully was contention that the Court aware of may pre- this instruction sometimes act to imposed analytical def- constraints considering jury clude the from relevant miti- review,” Maj. Op. standard of erential AEDPA Brown, gating evidence. See Belmontes v. gentle way obscuring at is a Cir.2005). (9th F.3d 1102 n. 1 whether the fit Court did not decide issues, question since that within Payton's 5. The state had court held miti- Rather, had I. been answered in (sincere God, gating evidence commitment to granted relief Court habeas based on Tex- ministry, prison calming involvement in instruc- trial court's use of nullification prisoners) post-crime on other of his behavior Tennard, similarly tion. Court did not could be considered within instruc- evidence fit consider whether granted tions. Circuit The Ninth habeas re- Rather, lief, within the instructions. believing precedent Court (k) down this circuit's "constitution- upholding struck the factor instruction screening pre-crime Payton, al test and relevance” remanded for evidence. proceedings. further 125 S.Ct. 1432. to defer to the rea- also Congress’ Esparza, instruction See Mitchell (2003) (“A judges conclusions of state-court sonable makes a critical difference.” may federal court not overrule a state J., (Breyer, concurring). simply holding court for a view different own, judge, I a California state I would from its when precedent Were from Payton’s is, best, likely penalty-phase hold that this Court ambiguous.”).6 Eighth proceedings violated the Amend- circuit spent Our has considerable time [Tjhere might .... well ment and effort trying divine whether been a reasonable likelihood that [the] precluded from considering vari- challenged jury in- interpreted [the ous evidence within the confines in a way prevented] struction] issues. Such a close review considering constitutionally rele- of state court convictions is neither envi- .... vant saged permissible nor under the standard [, ... Nonetheless the reasons that f]or imposed by review AEDPA. Congress discusses, say I cannot review, scope has limited the of our habeas the California Court decision and we must accede. Under that Con- [AEDPA’s] fails deferential test. gressionally-mandated review, deferential (fourth 148-49, 125 S.Ct. 1432 altera I simply fail to see a majority how of this (internal in original) quotation tion marks court can hold unequivocally that the state omitted). just habeas court not (certainly has erred Payton While does not address the Tex- prospect) debatable but has erred unrea- issues, special supports as it nonetheless sonably so as to merit federal habeas re- that, AEDPA, proposition the under feder- lief. sitting al courts habeas review of state must convictions defer reasonable state OWEN, Judge, Circuit with whom court regarding determinations the consti- SMITH, and Judges, join JOLLY Circuit Where, tutionality of instructions. as dissenting: here, directly applicable there is no Su- preme precedent question and the is Judge Court The dissents of Chief Jones and close, Judge so a federal court cannot conclude I points. Clement make salient unreasonably applied emphasize the state court the of write standard review that, Supreme precedent. Payton, given Court See that must be the (noting state of the law when Nelson’s conviction precedent the Ninth Circuit “cited no of final in sentence became support” position this Court to application Texas court’s of United States contrary Supreme precedent “objec- state court acted to or unreason- was not Court ably applied Supreme precedent). tively Supreme The unreasonable.”1 Though majority opinion purports tion is it was whether unreasonable for the state habeas court to hold that there was not apply merely disagree AEDPA and not pre- reasonable likelihood that the was decision, Maj. Op. the state habeas court see giving cluded from consideration and effect to analysis at 303 & and conclusion of mitigating question evidence. This latter opinion clearly majority show otherwise. substantially higher sets a bar to relief. question is not The whether there is reason- precluded able likelihood that the Taylor, 1. Williams v. giving from consideration and effect to Nel- (2000) ("Stated evidence, Maj. Op. son's see simply, making a federal habeas court 303, 306, 307, 308, 313; rather, ques- application’ inquiry & should ask 'unreasonable preme review in in habeas re Court denied 1994.9

Court has admonished corpus important point is that an Nelson then initiated habeas pro- “the most view ceedings. of law is application federal unreasonable application an incorrect different courts of Habeas review federal state majority failed to law.”2 The has federal by proceedings governed court is 28 U.S.C objective It was not this distinction. draw § us inquiry today and the before ly to conclude that Nelson’s unreasonable proceedings whether the state “resulted was distinguishable to, contrary a decision that was or involved intel from the mental retardation low of, application clearly unreasonable es- (Pen Lynaugh ligence at issue law, tablished Federal as determined Dretke,4

ry I),3 and Smith v. Tennard Supreme Court of the United States.”10 Texas,5 and was instead more similar Supreme has held that youth qualities at issue in transient law, Federal phrase “clearly established as v. Texas6 Graham v. Collins.7 Johnson determined Court” means dicta, opposed

“the as to the holdings, of the time Court’s decisions as relevant state-court decision.”11 of Criminal Appeals The Texas Court At Criminal sentence on direct re- the time the Texas Court of affirmed Nelson’s 1993, rejecting Appeals argument judgment affirmed the Nelson’s view appeal, direct issues submitted Court’s most pronouncements adequate regarding consideration recent Tex permit failed to penal That in death judgment evidence.8 be- issues submitted ty the United cases 1991were came final when States Su- tried before Graham v. application 7. 506 the state court’s of clear 122 L.Ed.2d whether ly objectively federal law was un established reasonable.”); Payton, see also Brown v. State, (Tex.Crim.App.1993), 8. Nelson v. 864 S.W.2d 496 ("Even we were to assume the 334 denied, 1215, t. 510 U.S. 114 cer ' clearly state-court decision "relevant 1338, (1994). S.Ct 686 127 L.Ed.2d The erroneously law established federal or incor portion Ap Texas Court of Criminal ’ rectly,” no basis for there is further conclud opinion peals’s addressing mitigat Nelson's precedents ing application of our was ing special evidence and the issues submitted ”) (quoting Lockyer 'objectively unreasonable.' jury unpublished. to the 63, 76, 1166, Andrade, 538 U.S. 123 S.Ct. Williams, (2003) (quoting 155 L.Ed.2d 144 1215, 1338, 9. 510 U.S. at 114 S.Ct. 127 411, (internal 1495)) 120 S.Ct. 529 U.S. L.Ed.2d 686. omitted). citations 410, Williams, 2. U.S. at 529 120 S.Ct. 1495. 2254(d)(1) (2000). § 10. 28 U.S.C. 302, 2934,

3. 109 S.Ct 106 L.Ed.2d 492 U.S. 362, 412, Taylor, 11. 529 U.S. Williams v. 120 (1989). 256 1495, (2000); 146 see also 274, 2562, 4. 159 L.Ed.2d ("[Wjhatever qualify id. would as old rule (2004). Teague jurisprudence under our will consti- law, 'clearly tute as established Federal deter- 5. 125 S.Ct. 160 L.Ed.2d 303 mined Court of the United (2004). ”) Lane, (referencing Teague States.’ 109 S.Ct. 103 L.Ed.2d 125 L.Ed.2d (1989)). (1993). Collins,12 peti expectation a able which considered habeas that the death of the de- tion, Texas,13 and Johnson v. which was ceased ... would The Supreme result.”18 of a Both direct review death sentence. Court held that assuming “under- extensively surveyed decisions the Su ‘deliberately’ stood something mean preme jurisprudence regarding Penry more than that guilty of ‘inten- special mitigating evidence and tionally’ murder, committing jurors those today. issues under consideration In both may still give have been unable to effect to Johnson, Graham primary ques Penry’s mitigating Penry’s evidence.”19 special tion was whether the issues allowed retardation, mental while relevant juries give mitigating effect to a defen capable whether he was of acting “deliber- “ dant’s ately,” also ‘had relevance to moral youth.14 [his] ”20 culpability.’ The Supreme Court con- Graham cluded that special because the first issue Court discussed its decision in did not ‘deliberately’ way “defin[e] proceeding habeas present- clearly would direct the to con- indicating ed evidence that he had a low Penry’s sider mitigating evidence IQ, had mild to moderate mental retarda- personal culpability,” bears the Su- tion, and had been beaten and received preme Court could not “be sure that the multiple injuries at an early head age.15 was able to effect mitigat- The Court held that the Texas ing Penry’s evidence of mental retardation issues did not allow the history in answering of abuse the first Penry’s mitigating to all of evidence.16 special issue.”21 The same could be said of Three were jury, issues submitted to the Nelson’s personality borderline disorder. any and a “no” answer them would have resulted in a life than sentence rather second special inquired issue the death penalty.17 probability “whether there is defendant inquired

The first issue if would commit criminal acts of “deliberately acted and with the reason- violence that continuing would constitute a 12. 506 U.S. 122 L.Ed.2d 19. Id. (1993). (quoting Lynaugh, Franklin v.

13. 509 U.S. 164, 185, The Texas Court of Criminal (1988) (plurality opinion)). Appeals affirmed Nelson’s conviction and sen- May tence on before Johnson v. 323, Supreme 21. Id. at 109 S.Ct. 2934. The issued, deny but the Texas court did not Court reasoned: further 6, 1993, rehearing until October after Johnson 24, instruction, had issued on June 1993. special juror a Without such a Penry's who believed that retardation and Graham, 463, 892; 14. 506 U.S. at background culpabili- diminished moral his Johnson, 352, 509 U.S. at 113 S.Ct. 2658. ty imposition penalty and made of the death give unwarranted would be unable to effect 302, 307-09, Penry Lynaugh, 15. juror to that conclusion if the also believed 2934, (1989). 106 L.Ed.2d 256 committed the crime “deliber- Thus, ately.” we cannot be sure that the 328, 16. Id. at 109 S.Ct. 2934. jury's special answer to the first issue re- response” flected “reasoned moral 310, 322-25, 17. Id. at 109 S.Ct. 2934. Penry's mitigating evidence. 18. Id. at 109 S.Ct. 2934. Id. case, “one society.”22 Penry’s type In distinction between the of evidence threat to inability catego in other [was] effect of his retardation issue certain In mitigating from his mistakes.”23 of The Court to learn ries evidence.29 that Pen- Supreme constitutionality Court reasoned re-confirmed relevant ry’s jury penalty mental retardation was in cases submissions death “ “only dangerousness but the future issue on ‘whether reasonable turns there is a sug- aggravating an factor because as jury likelihood that has ‘yes’ question gests a answer to challenged way pre instruction in a held, The dangerousness.”24 future constitutionally vents the consideration of ”30 issue, therefore, did “The second making evidence.’ In that de relevant give for the provide vehicle termination, sets Johnson decision mitigating Penry’s effect to evidence important, forth at least three inter-relat abuse.”25 mental retardation and childhood juror might if a principles: ed even as aggravating view the evidence both in Subsequently, Graham mitigating, Eighth has Amendment emphasized jury’s answer long mitigating been satisfied as the “[a]s Penry’s the second case issue is within reach of a evidence ‘the effective give could not effect to the as- ”31(2) senteneer,’ required state is not pects of his mental and abuse retardation “to allow a effect to “[a]lthough Penry’s evidence of because every evidence conceivable manner impairment mental and childhood abuse relevant,”32 might which the evidence indeed had to the ‘future dan- relevance permitted a state is to structure inquiry, ag- gerousness’ its relevance evi consideration relevant only.”26 gravating The decision Graham long as the allowed to reasoned, dence “Penry’s compelled through to that at least one danger- affirmative answer to that [future making sentencing decision.33 vehicle inquiry, mitigating sig- despite ousness] Graham, contrast, By nificance.”27 ex- Supreme Court youth “quite readily defendant’s could rejected the “that pressly argument supported a negative answer.”28 forward-looking perspective of the future dangerousness inquiry a few not allow the Court’s decision did petitioner’s months later likewise draws to take account Johnson of how (quoting Boyde 22. Id. 30. Id. at 113 S.Ct. 2658 California, (1990)). 108 L.Ed.2d 316 23. Id. (quoting 31. Id. at 113 S.Ct. 2658 Gra- 24. Id. ham, 892). 25. Id. 109 S.Ct. 2934. 113 S.Ct. 2658. Collins, 26. Graham v. 2658; also id. at see ("To petitioner’s 113 S.Ct. 2658 rule in favor, require jury we would have to that a 475,

27. Id. at 113 S.Ct. 892. in a it free to instructed manner that leaves depart special every from the case. issues 475-76, would, course, 28. Id. at 113 power S.Ct. 892. on This of remove all part of the States to structure the consid- Texas, 350, 368-70, mitigating 29. Johnson v. of result we 509 U.S. eration evidence—a 2658, rejecting.”). 113 S.Ct. have been consistent in L.Ed.2d personal culpability require- evidence satisfies constitutional youth upon bore ments.38 explained, he committed.”34 Su- The Court “It is true for the murder that the that Texas has structured preme reasoned “forward- consideration of independent qualities petitioner’s youth, is not of an the relevant of looking inquiry doing, It is in so personal culpability. but the State still ‘allow[s] assessment mitigating to make to effect to logical [this] and fair for evi- both in making sentencing of a defendant’s future dence deci- its determination ”39 required to sion.’ A state is not dangerousness asking provide extent to youth giving influenced the defendant’s more than one avenue for effect to expressly mitigating “Although The Court also re- evidence: Texas conduct.”35 jected argument might provided that the Texas other the related vehicles for jury “to special permit petitioner’s youth, issues did not consideration of no ad- ” response’ beyond given make a ‘reasoned moral ditional instruction toas in- youth dangerousness required because the issue future defendant’s or- dangerousness.36 future der for the to quired about be able consider the mitigating youth qualities presented The Court concluded use society” in “continuing term threat it.”40 dangerousness issue “af- future answering question relevant independent room for ford[ed] sentence, of a direct review death which is decision,” ex-

judgment reaching “whether the Texas issues allowed “Indeed, forget that ‘a plaining, we cannot adequate consideration” evi- jury deliberating over the capital dence,41 Court reiterated is aware of the conse- Special Issues reviewing Johnson that “a court must de- answers, quences likely of its and is termine ‘whether there is a reasonable weigh mitigating evidence as it formulates the jury likelihood has in a these answers manner similar to challenged way pre- instruction in a employed by capital juries “pure balanc- constitutionally vents the consideration of ”37 ing” States.’ ”42 The relevant evidence.’ Court found no Perhaps importantly, regard most such likelihood with defen- may youth. any jurors “If Court held Johnson that state dant’s believed that qualities petitioner’s youth structure consideration of evi- the transient murder, culpable and that one made him for the providing dence vehicle less through which to effect to there is no reasonable likelihood that those 369, 2320, (1988) (plu- 34. Id. at 113 S.Ct. 2658. L.Ed.2d rality opinion)). Id.; Belmontes, Ayers 35. see also v. - U.S. 38. Id. at 113 S.Ct. 2658. -, 469, 475, Johnson, (2006) (citing U.S. at Parks, (quoting v. 39. Id. Saffle proposition for the that "the 'for (1990)). 108 L.Ed.2d 415 ward-looking' future-dangerousness inquiry independent per 'is not of an assessment of 40. Id. "). culpability.’ sonal 41. 113 S.Ct. 2658.

36. 113 S.Ct. 2658. Boyde California, (quoting Id. (quoting 113 S.Ct. 2658 (1990)). Lynaugh, Franklin 182 n. or low intelli- mental retardation themselves Unlike have deemed jurors would condi- considering generally that in evalu- are static gence, which foreclosed dangerousness.”43 tions, regarding future the evidence Nelson’s bor- ating petitioner’s solely disorder is not personality derline II regard to his future dan- aggravating with we must deter- backdrop, majority and Against opinion gerousness. court decided the Texas mine whether describe the Judge Jones’s dissent Chief “differently than Su- [the case Nelson’s detail, I testimony in and will some expert materially has on a set of preme] Court The im- those discussions. duplicate not noted, this is facts.”44 As indistinguishable although is that Nelson’s ex- portant point a writ of appeal; Nelson seeks not a direct suffering that those pert witness conceded habeas court corpus. federal “[A] habeas can personality disorder from borderline in- application’ making the ‘unreasonable guar- to treat and there was no be difficult 2254(d)(1)] § quiry 28 U.S.C. [under Nelson’s treatment would be suc- antee appli- the state court’s should ask whether cessful, that Nelson’s expert opined clearly established federal law cation of was treatable with medication disorder light objectively unreasonable.”45 period over a of two to five psychotherapy Johnson, I, Graham, it can- agree Judge Clement’s dis- years. objectively not be said that it would be borderline senting opinion Nelson’s to conclude that Nelson’s unreasonable disorder falls somewhere on personality distinguishable from mitigating evidence is Penry’s mental retar- continuum between comparable or is more Penry’s evidence youth.47 dation Graham’s if youth. Even and Johnson’s Graham’s law in Johnson The established conclude, majority in might court as the youth is that the attributes Graham does, that the Texas court incor- this case category than mental place it in a different law, that is not a rectly applied federal youth relevance of as a retardation: “The Again, granting habeas relief. basis fact that mitigating factor derives from the that “the has held youth are tran- signature qualities is that an unreason- important point most mature, sient; impetu- as individuals of federal law is different application able may and recklessness that domi- federal ousness application from an incorrect A younger years can subside.”48 nate law.”46 arrives at a result different from nevertheless 43. Id. at 113 S.Ct. 2658. precedent.”). our 362, 413, Taylor, 44. Williams v. (2000) (constru- 45. 120 S.Ct. 1495. 2254(d)(1), provides, ing § 28 U.S.C. corpus 120 S.Ct. 1495. application for a writ of habeas "An granted adjudi- ... unless the ... shall not Collins, ... resulted in a decision cation of the claim 47. See Graham v. ("The to, contrary or involved an unrea- that was of, accept sugges- clearly application established was not forbidden sonable law, lawyers spasm that his brief tion of Graham's Federal as determined activity May properly States”); 1981 was of criminal id. at United see also Court of the viewed, background, light youth, ("A of his state-court decision 120 S.Ct. 1495 character, that was and his as an aberration contrary clearly to this Court's will ... be likely repeated.”). to be precedent if the state court con- established materially indis- a set of facts that are fronts S.Ct. 2658. tinguishable of this Court and from a decision jury give adequate can effect to the miti- sive treatment from his mother must be independently considered gating aspects youth answering his mental condition, it not is unreasonable to con- dangerousness future issue because evidence, clude as well as evi- inquiry not “forward-looking indepen- is regarding dence Nelson’s troubled rela- personal culpabil- dent of an assessment of tionships with his brother and women ity. logical It is both and fair for the inability to have a relationship with his to make its determination of a defendant’s wedlock, child born out of is more similar dangerousness by asking future the extent to “Graham’s evidence of up- transient youth to which influenced the defendant’s bringing and otherwise nonviolent charac- dangerousness conduct.”49 The future is- harsh, ter”50 than it is to the physical adequate though sue is even is free upon Penry abuse inflicted as a child.51 youth to conclude that did not influence The Texas court did not unreasonably ap- conduct or that defendant’s the attrib- ply Supreme Court’s holding Gra- youth, impetuousness utes of such as ham and Johnson that additional instruc- recklessness, will not subside as to this tions or an additional issue are not It not defendant. was unreasonable for required simply because evi- the Texas court to conclude that the same arguable dence has some beyond relevance can regarding be said of the Nel- the special Supreme issues. The personality son’s borderline disorder and said in both Graham and Johnson: the prospects for its treatment. The [Hjolding that a defendant is entitled to may have concluded that Nelson’s disorder special instructions whenever he can of- treatable, not, just or that it was as fer evidence that has some juries may conclude that the attributes of arguable beyond relevance special youth are not transient a particular as to issues ... would require be all defendant. A court conducting a direct “special cases that a fourth put issue” be review of the Texas court’s decision to “ jury: any mitigating ‘Does evi- place evidence of Nelson’s borderline dence you, before whether or not rele- personality disorder in the same category questions, vant to the above [three] lead youth might conclude that the Texas you to the death penalty believe erred, court but it was not unreasonable ”52 imposed?’ should be for the Texas court to treat Nelson’s evi- The Court first casu- “[t]he observed youth, giv- dence as similar to evidence of alty a holding require would [that en precedent. additional issue whenever evidence had The evidence also reflected that Nel- beyond some relevance issues] son’s mother did not love him and shunned would be Jurek. The inevitable conse- him. expert Nelson’s testified that his quence petitioner’s argument likely mother’s conduct contributed to system issues in almost ev- personali- exacerbated Nelson’s borderline ery case have to supplemented would ty disorder. To the extent Nelson’s abu- a further instruction.”53 The (quoting Lynaugh, 49. 113 S.Ct. 2658. Franklin v. 180 n. 108 S.Ct. Graham, 50. 506 U.S. at 113 S.Ct. 892. (1988) (plurality opinion))). 302, 308-09, Lynaugh, Texas, (referencing 53.Id. Jurek v. (1976)). L.Ed.2d 509 U.S. at 113 S.Ct. 2658 Graham, (quoting adequate vehi- provided an jury ateness issue long [was] as “a that as

Court held manner all of cle. in some to consider able evidence,” relevant

defendant’s allow a “to required to a state was not Ill every in mitigating evidence give effect to manner in which the conceivable post-1994 deci The The Texas court was be relevant.”54 might II),57 (Penry Penry Johnson sions in prece- in applying unreasonable not Dretke,58 v. Texas59 and Smith Tennard dent. application the Texas court’s do render closing arguments, Additionally, during precedent Supreme Court of established the suggested prosecutor twice of those decisions unreasonable. None was not jury might conclude that Nelson instructions or anoth holds that additional morally culpable for the murder because necessary mitigating evi is when er issue him treatment of his mother’s or others’ answering given effect in dence can be jurors not to do so.55 This urged “deliberately” special issue or either the unlikely thought it was indicates special issue dangerousness” “future give it could not effect to evidence Texas law. pre-1991 under considering in Nelson’s childhood abuse II, Penry Penry future retried culpability answering In had been moral As was the case trial court dangerousness issue. to and the subsequent Belmontes, Ayers v. improbable issue, “It is a third in addition submitted jurors parties were en- believed “deliberately” dangerousness” and “future futility re- gaging in an exercise in when Supreme Court held that the issues.60 The (and later spondent presented both counsel subject possible to two third issue was discussed) open interpre- interpretations, and neither least, very record At the court.”56 infirmity cured the of the first two tation court would not indicates that the Texas Penry’s evidence.61 issues as to concluding have been unreasonable practical either had no The third issue could effect to this evidence. essentially directed effect62 “yes” answers to the first change truthful substance As to evidence of Nelson’s abuse, issues to “no.”63 questions that the deliber- two no one - -, Jurek, (“In overruling S.Ct. 166 ac- 56. 54. Id. addition to (2006). cepting petitioner’s arguments entail would Ohio, Lockett [v. an alteration of the rule of 1910, L.Ed.2d 57. 532 U.S. 121 S.Ct. 2954, 57 L.Ed.2d 973 (2001). Oklahoma, (1978)] Eddings [v. (1982)].”). 159 L.Ed.2d 58. 542 U.S. (2004). argued, going prosecutor 55. "You are Billy, Billy, Billy, Billy, and before hear some 59. 543 done, grizzly, this is all said and this whole going hung thing to be around horrible II, U.S. at 1910. 60. and, mother,” neck of his "We live—like this, hang say, going before it is we are 61. Id. at 121 S.Ct. 1910. hang going we the neck over are it around of some school teacher or some football 62. going hang coach. We are this around the everybody but him.” neck of cite, Smith, II, in a “see also” In the Supreme again quoted Justice O’Connor’s dis- quoted passage from Justice O’Con- noting parenthetical,

sent “ dissenting opinion nor’s in Johnson that sentencer be allowed to ‘[A] [must] said a sentencer must be allowed to give “ mitigat- consideration and effect to full full to mitigating circum- full ing (emphasis origi- circumstances’ stances.’”69 At issue was a nullification nal).”64 sentence, very inBut next question, similar but not identical to the Penry requiring Court adhered to “ J/,70 Penry one submitted in ‘essen- expressing for “a ‘vehicle its “reasoned tially jury] instructed to return a [the false response” moral to that evidence in ren- answer to a issue order to avoid ”65 dering sentencing decision.’ The ”71 a death sentence.’ The reference to effect” and consid- “full “full explained in Smith the import of its hold- eration” cannot be taken as a retraction of ings in Tennard and IP. holdings: “Although one of Johnson’s core might provided other vehicles Rather, we held that the must be petitioner’s [mitigating for consideration of given an effective vehicle with to evidence], beyond no additional instruction weigh mitigating evidence so long as the given dangerousness as to future was defendant has met a “low threshold for “ required order for the to be able to relevance,” which is satisfied ‘evi- mitigating qualities youth consider the logically prove dence which tends to presented to it.”66 disprove some fact or circumstance Tennard, the Supreme Court consid- which a fact-finder reasonably could ”72 ered in some detail what miti- constitutes deem to have value.’ evidence, gating explaining that The Court held Smith that “the burden if deciding threshold was low one proof on the State was tied law to there a mitigating aspect.67 was findings of deliberateness and future dan rejected “uniquely this circuit’s se- little, gerousness that had if anything, to permanent handicap” vere and “nexus” mitigation petitioner do with the jurists “that tests and held reasonable presented.”73 IQ Smith had a low and was would find or wrong” debatable the state classes, placed education low-IQ- court’s indicat disposition of “Tennard’s based claim.”68 ing intelligence, low condition 797, son, 381, (O'Con- (quoting 64. Id. at 121 S.Ct. 1910 John 509 U.S. at Texas, 350, 381, nor, J., son v. dissenting)). 113 S.Ct. 2658, (1993) (O’Connor, J., 125 L.Ed.2d 290 dissenting)). Johnson, 782, 797-98, 70. 532 U.S. 1910, (2001). 121 S.Ct. 150 L.Ed.2d 9 (quoting Penry Lynaugh, 65. Id. 492 U.S. 302, 328, 109 S.Ct. 106 L.Ed.2d 256 Smith, (quot- 71. 543 U.S. at 125 S.Ct. 400 (1989)) added). (emphasis II, 1910). ing Penry 121 S.Ct. 509 U.S. at 66. 113 S.Ct. 2658. Tennard, (quoting 125 S.Ct. Dretke, 274, 282-89, 67. Tennard v. (quoting 124 S.Ct. 2562 159 L.Ed.2d 384 Carolina, 433, 440, McKoy v. North (1990))) (in- 108 L.Ed.2d 369 124 S.Ct. 2562. omitted). quotation ternal Texas, 69. Smith v. (quoting John- 73. Id. at 125 S.Ct. 400. Similarly, prospects in the for its treatment was less or treatable.74 transient Tennard, IQ had similar retardation79 low in- the defendant mental intelligence.75 mitigat telligence80 No and more similar the tran- indicating low intelligence qualities to low ing given youth.81 Accordingly, could be sient dangerousness jury’s answer the future dissent. through It is not .76 unreasonable issue per that Nelson’s borderline conclude potential treatment

sonality disorder distinguishable from that condition Tennard’s circum

Smith’s and regard. in this

stances Tennard Smith nor purports

Neither Johnson holding overrule the America, UNITED STATES only required provide one ave- state is Plaintiff-Appellee, nue effect to evi- giving for v. dence, an- multiple vehicles.77 A “no” dangerousness swer future issue NOLEN, Robert E. Defendant- based on Nelson’s Appellant. full effect to that evi- given

would have No. 05-40859. Johnson, any if paraphrase dence. To jurors believed Nelson’s borderline Appeals, United States Court personality disorder transient because Fifth Circuit. and his made was treatable condition 12, 2006. Dec. murder, him no culpable less there is jurors

reasonable likelihood those

would have deemed themselves foreclosed considering evaluating Nel- dangerousness.78

son’s future

[*] * * * * objectively court was not un-

The Texas applying

reasonable precedent to the facts

Court’s established

presented. objectively It was not unrea- to conclude that evidence of Nel-

sonable personality

son’s borderline disorder and Texas, 74. 80. See v. 543 U.S. Id. at 41. Smith (2004); 160 L.Ed.2d see also 75. U.S. at Tennard, 542 U.S. at 124 S.Ct. 2562. S.Ct. 2562. 81. See Texas, 350, 370, 77. See Johnson v. 2658; Collins, see also Graham (1993). L.Ed.2d 461, 463-64, (1993). 78. See id. Penry Lynaugh, 79. See

Case Details

Case Name: Nelson v. Quarterman

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Dec 14, 2006

Citation: 472 F.3d 287

Docket Number: 02-11096

Court Abbreviation: 5th Cir.