Lead Opinion
A panel of this court previously affirmed the district court’s denial of Billy Ray Nelson’s habeas corpus petition challenging his sentence on the ground that the Texas capital-sentencing procedure failed to give constitutionally sufficient effect to his mitigating evidence, in violation of Penry v. Lynaugh (Penry I),
I. FACTUAL AND PROCEDURAL BACKGROUND
On December 11, 1991, a Texas jury found Nelson guilty of capital murder for the February 23, 1991, slaying and brutal sexual assault of his neighbor, Charla Wheat. Evidence presented during the guilt/innocence phase of trial revealed the following: Nelson gained entrance to Wheat’s apartment by asking if he could use her phone. Once inside, he cut the telephone cord to prevent her from calling for help and then proceeded to stab her. He then found Wheat’s roommate, Carol Maynard, who was five months pregnant at the time, and forced her to get out of bed and enter the living room, where Wheat was on her knees bleeding from her stab wounds. Nelson told the women to remove their clothing and threatened to kill them if they refused. He then forced the women to perform sexual acts on him and each other. Thereafter, he stabbed Maynard in the neck and proceeded to strike Wheat. Nelson left briefly but Wheat began screaming and he returned. While Maynard pretended to be dead, Nelson struck and stabbed Wheat until she died. He then left the women’s apartment.
At the sentencing phase of the trial, Nelson presented the following mitigating evidence, which we will discuss more fully infra: (1) he was rejected by his mother, who had completely abandoned him by age 14 (“abusive childhood” evidence); (2) he abused drugs and alcohol (“substance abuse” evidence); (3) he has troubled relationships with his brother and with women; (4) he had a child out of wedlock, with whom he was not permitted to have a relationship; and (5) a psychiatrist testified he was suffering from borderline personality disorder (“mental disorder” evidence). For a jury to impose the death penalty at the time of Nelson’s trial, Article 37.071(b) of the Texas Code of Criminal Procedure required the jury to answer two special issue questions concerning evidence presented in mitigation: “(1) whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result” (“the deliberateness special issue”); and “(2) whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society” (“the future-dangerousness special issue”).
Nelson filed a state petition for writ of habeas corpus in September 1997, arguing that the Texas capital sentencing scheme, 1.e., the two special-issue questions, failed to ensure that the jury could give the constitutionally required consideration of and effect to his mitigating evidence of his mental disorder, abusive childhood, and substance abuse under Penry I,
[t]he Court instructed the jury on the charge on punishment, “You should consider and give effect in answering each issue to your evaluation of all of the evidence before you, including all aspects of the background and character of the defendant and the circumstances of the crime.” ... The jury charges and special issues allowed the jurors to give effect to all presented mitigating evidence in their answers to the special issues including the intoxication of [Nelson] at the time of the offense.
Id. at 90. Therefore, the court concluded that the procedure was constitutional as applied. The court dismissed Nelson’s subsequent habeas petition as an abuse of the writ. Ex parte Nelson, No. 49,886-02 (Tex.Crim.App. Oct. 10, 2001).
Nelson filed a petition for writ of habeas corpus in the federal district court in August 2002. The district court rejected Nelson’s Penry claim for failing to meet the requirements of our now-defunct “constitutional-relevance” test.
II. DISCUSSION
A. Standard of Review
Because Nelson filed his § 2254 habeas petition after April 24, 1996, this habeas proceeding is governed by the Antiterrorism and Effective Death Penalty Act (“AEDPA”). See Fisher v. Johnson,
Under AEDPA, a federal court may not grant a writ of habeas corpus “with respect to any claim that was adjudicated on the merits in State court proceedings” unless the petitioner shows that the state court’s adjudication “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” or that the state court’s adjudication of a claim “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1); Williams v. Taylor,
A writ of habeas corpus may also issue if the state court’s adjudication of a claim “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2). Under AEDPA, a state court’s factual findings are “presumed to be correct” unless the habeas petitioner rebuts the presumption through “clear and convincing evidence.” Id. § 2254(e)(1); Miller v. Johnson,
B. Clearly Established Federal Ldtu
Under AEDPA, our duty is to determine whether the state court’s determination was contrary to or an unreasonable application of clearly established federal law as determined by the Supreme Court at the time that Nelson’s conviction became final in 1994. See Williams,
1. Jurek v. Texas and the Immediate Post-Furman Cases
In Furman v. Georgia,
The immediate post-Furman Supreme Court cases addressing this and other sentencing schemes attempted to strike a balance between satisfying two competing constitutional requirements — the requirement of “individualized sentencing” that takes into account the unique facts of each case and each defendant, and the requirement of preventing the arbitrary imposition of the death penalty that can result from giving the sentencer unfettered discretion. These cases announced the principles that would underlie the Supreme Court’s later pronouncement that a capital sentencing scheme must allow the sentencer to give full effect to all of the defendant’s mitigating evidence.
In Jurek v. Texas,
A Lockett v. Ohio and Eddings v. Oklahoma
Echoing these post-Furman concerns that the sentencer be able to consider and give effect to mitigating evidence in a constitutionally adequate way, the Supreme Court in Lockett v. Ohio,
the Eighth and Fourteenth Amendments require that the sentencer, in all but the rarest kind of capital case, not be precluded from considering, as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.
Id. at 604,
3. Franklin v. Lynaugh
The Court considered an as-applied challenge to the Texas capital-sentencing scheme for the first time in Franklin v. Lynaugh,
[i]f ... petitioner had introduced mitigating evidence about his background or character or the circumstances of the crime that was not relevant to the special verdict questions, or that had relevance to the defendant’s moral culpability beyond the scope of the special verdict questions, the jury instructions would have provided the jury with no vehicle for expressing its “reasoned moral response” to that evidence. If this were such a case, then we would have to decide whether the jury’s inability to give effect to that evidence amounted to an Eighth Amendment violation. In my view, however, this is not such a case.
Id. at 185,
A Penry I
The very next term, the Supreme Court considered just such a case in Penry I,
The Court then granted the habeas petition, emphasizing that “it is not enough simply to allow the defendant to present mitigating evidence to the sentencer. The sentencer must also be able to consider and give effect to that evidence in imposing sentence.” Id. at 319,
In Penry’s case, however, the Court held that the evidence of mental retardation and abusive childhood had mitigating relevance beyond the scope of the deliberateness and future-dangerousness issues, because it also spoke to Penry’s moral culpability; therefore, the jury was unable to give effect to the mitigating evidence in a manner consistent with the Eighth Amendment. First, with regard to the deliberateness special issue, the Court reasoned that, although a jury could give partial effect to Penry’s mental retardation and abusive past by finding that his actions were not deliberate, a jury could also conclude that Penry acted deliberately but, because of his mental retardation and abusive childhood, “was less morally ‘culpable than defendants who have no such excuse,’ but who acted ‘deliberately’ as that term is commonly understood.” Id. at 322-23,
Although the Court did not expressly use the words “full effect” in Penry I, its
that the constitutionality turns on whether the questions allow mitigating factors not only to be considered (and, of course, given effect in answering the questions), but also to be given effect in all possible tvays, including ways that the questions do not permit. ... What the Court means by “fully consider” (what it must mean to distinguish Jurek) is to consider for all purposes, including purposes not specifically permitted by the questions.
Penry I,
The State contends that the “full effect” language in Penry I and its progeny “is merely dicta, because it would otherwise overrule Jurek”-, however, this argument mischaracterizes the holding in Jurek, which upheld only the facial validity of the Texas special issues scheme. See Jurek,
after Gregg and Proffitt and prior to Franklin, [the Court] held unconstitutional specific applications of the same Georgia and Florida statutes [it] earlier had approved. See Godfrey v. Georgia,446 U.S. 420 ,100 S.Ct. 1759 ,64 L.Ed.2d 398 (1980) (vague and overly broad con*298 struction of aggravating factor rendered death sentence unconstitutional); Hitchcock v. Dugger, [481 U.S. 393 ,107 S.Ct. 1821 ,95 L.Ed.2d 347 (1987),] (holding it unconstitutional to restrict jury’s consideration of mitigating factors to those enumerated in the statute).
Johnson v. Texas,
5. Graham v. Collins and Johnson v. Texas
After Penny I, the Court addressed in Graham,
even if Penny reasonably could be read to suggest that Graham’s mitigating evidence was not adequately considered under the former Texas procedures, that is not the relevant inquiry under Teague. Rather, the determinative question is whether reasonable jurists reading the case law that existed in 1984 could have concluded that Graham’s sentencing was not constitutionally infirm. We cannot say that all reasonable jurists would have deemed themselves compelled to accept Graham’s claim in 1984 .... The ruling Graham seeks, therefore, would be a “new rule” under Teague.
Id. at 477,
Later that term, in Johnson,
6. Penry II
In Penry II,
[i]f you determine, when giving effect to the mitigating evidence, if any, that a life sentence, as reflected by a negative finding to the issue under consideration, rather than a death sentence, is an appropriate response to [Penry’s] personal culpability ..., a negative finding should be given to one of the special issues.
Id. at 790,
The Court, fully aware of the analytical constraints imposed by the deferential AEDPA standard of review, held that the Texas Court of Criminal Appeals had un
the key under Penry I is that the jury be able to “consider and give effect to [a defendant’s mitigating] evidence in imposing sentence.”492 U.S., at 319 ,109 S.Ct. 2934 ,106 L.Ed.2d 256 (emphasis added). See also Johnson v. Texas,509 U.S. 350 , 381,113 S.Ct. 2658 ,125 L.Ed.2d 290 (1993) (O’CONNOR, J., dissenting) (“[A] sentencer [must] be allowed to give full consideration and fall effect to mitigating circumstances” (emphasis in original)). For it is only when the jury is given a “vehicle for expressing its ‘reasoned moral response’ to that evidence in rendering its sentencing decision,” Penry I,492 U.S. at 328 ,109 S.Ct. 2934 , that we can be sure that the jury “has treated the defendant as a [‘uniquely individual human being]’ and has made a reliable determination that death is the appropriate sentence,” id., at 319,109 S.Ct. 2934 (quoting Woodson v. North Carolina,428 U.S. 280 , 304, 305,96 S.Ct. 2978 ,49 L.Ed.2d 944 (1976)).
Penry II,
7. Tennard v. Dretke and Smith v. Texas
The Supreme Court’s decision in Ten-nard, in light of which this court must assess Nelson’s Penry claim, reaffirms that a jury cannot be precluded from giving full effect to a defendant’s mitigating evidence and leaves no doubt that this standard was in effect at the time that Nelson’s conviction became final.
Specifically, the Supreme Court excoriated the Fifth Circuit for invoking its own restrictive gloss on the Court’s Penry I decision, uniformly applying to Penry claims a heightened-relevance standard that “has no foundation in the decisions of this Court.” Tennard,
When we addressed directly the relevance standard applicable to mitigating evidence in capital cases in McKoy v. North Carolina,494 U.S. 433 , 440-41,110 S.Ct. 1227 ,108 L.Ed.2d 369 (1990), we spoke in the most expansive terms. We established that the “meaning of relevance is no different in the context of mitigating evidence introduced in a capital sentencing proceeding” than in any other context, and thus the general evidentiary standard — “ ‘ “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence” ’ ” — applies. Id. at 440,110 S.Ct. 1227 (quoting New Jersey v. T.L.O.,469 U.S. 325 , 345,105 S.Ct. 733 ,83 L.Ed.2d 720 (1985)).... Thus, a State cannot bar “the consideration of ... evidence if the sentencer could reasonably find that it warrants a sentence less than death.”494 U.S. at 441 ,110 S.Ct. 1227 .
Tennard,
Then, “[o]nce this low threshold for relevance is met, the ‘Eighth Amendment requires that the jury be able to consider and give effect to’ a capital defendant’s mitigating evidence.” Id. at 285,
The Court emphasized that, in assessing the relevance of mitigating evidence, a reviewing court should not weigh the severity or sufficiency of the evidence, except
insofar as evidence of a trivial feature of the defendant’s character or the circumstances of the crime is unlikely to have any tendency to mitigate the defendant’s culpability. See Skipper [v. South Carolina,476 U.S. 1 ,] 7, n. 2,106 S.Ct. 1669 ,90 L.Ed.2d 1 (“We do not hold that all facets of the defendant’s ability to adjust to prison life must be treated as relevant*302 and potentially mitigating. For example, we have no quarrel with the statement ... that ‘how often [the defendant] will take a shower’ is irrelevant to the sentencing determination^”).] However, to say that only those features and circumstances that a panel of federal appellate judges deems to be “severe” (let alone “uniquely severe”) could have such a tendency is incorrect. Rather, the question is simply whether the evidence is of such a character that it “might serve ‘as a basis for a sentence less than death,’ ” Skipper, [476 U.S.] at 5,106 S.Ct. 1669 .
Tennard,
The Court concluded:
the Fifth Circuit’s screening test has no basis in our precedents and, indeed, is inconsistent with the standard we have adopted for relevance in the capital sentencing context. We therefore hold that the Fifth Circuit assessed Tennard’s Penry claim under an improper legal standard. Cf. Miller-El v. Cockrell, 537 U.S. [322, 341,123 S.Ct. 1029 ,154 L.Ed.2d 931 (2003)] (holding, on certio-rari review of the denial of a COA, that the Fifth Circuit had applied an incorrect standard by improperly merging the requirements of two statutory sections).
Tennard,
Although the decision in Tennard principally focused on rejecting the “constitutional-relevance” standard, the Court also indicated that Tennard’s evidence may have had relevance beyond the scope of the special issues, and that a jury might have been precluded from giving effect to that aspect of Tennard’s mitigating evidence. The Court explained that a COA should have issued because
[t]he relationship between the special issues and Tennard’s low IQ evidence has the same essential features as the relationship between the special issues and Penny’s mental retardation evidence. Impaired intellectual functioning has mitigating dimension beyond the impact it has on the individual’s ability to act deliberately. See Penry I,492 U.S. at 322 ,109 S.Ct. 2934 . A reasonable jurist could conclude that the jury might well have given Tennard’s low IQ evidence aggravating effect in considering his future dangerousness ....
Id. at 288-89,
In its most recent pronouncement on the Penry issue, the Supreme Court in Smith v. Texas,
First, the Court held that, in light of Tennard, the Texas Court of Criminal Appeals erred when it relied on the Fifth Circuit’s “constitutional-relevance” test to dispose of the petitioner’s Penry claim. Second, the Court held that, under its precedent, the Texas Court of Criminal Appeals erred when it held that the special issues and nullification instruction gave sufficient mitigating effect to the petitioner’s mitigating evidence. The Court, reviewing its case law, stressed that “[i]n Penry v. Johnson,
The State’s contention that Smith and Penry II are inapposite to the instant case because they involved a nullification instruction is not well taken. As we explained above, the nullification instruction was not an adequate solution to the problem the Court identified in Penry I— namely, that the jurors could not give Penny’s mitigating evidence full effect through the special issues. Penry II,
This review of the relevant Supreme Court case law therefore establishes that, at the time Nelson’s conviction became final in 1994, the clearly established law as announced by the Supreme Court was a full-effect standard. The Penry II Court left no doubt that full effect was the applicable standard, or that this was the standard that applied in Penry I. The debate has long since been over. Today, we make clear that we are following the Supreme Court’s directive and applying the standard it articulated; i.e., whether there is a reasonable likelihood that the special issues precluded the jury from giving full consideration and full effect to the defendant’s mitigating evidence, including evidence that has mitigating relevance outside the scope of the special issues because it speaks to a defendant’s moral culpability. This standard was “dictated by” the Supreme Court’s earlier decisions in Eddings and Lockett, see Penry I,
C. Application of Clearly Established Federal Laiv to Nelson’s Case
The Texas Court of Criminal Appeals concluded that the special issues were constitutional as applied to Nelson. Because there is a reasonable likelihood that the jury was precluded from giving full effect to Nelson’s mitigating evidence, we hold that the Texas Court of Criminal Appeals’ determination was an unreasonable application of clearly established law as announced by the Supreme Court.
1. Nelson’s Mitigating Evidence
The parties agree that, at the punishment phase of the trial, Nelson presented
Nelson also presented testimony from Dr. John Hickman, a psychiatrist who personally interviewed and assessed Nelson. Dr. Hickman testified extensively about the symptoms of borderline personality disorder, which can manifest themselves in “psychotic outburst[s]” and a “lack of impulse control.” According to Dr. Hickman, a person with borderline personality disorder has little insight into his own illness and may “periodically go through an outburst of feelings which can become very violent, very destructive,” even though he exhibits normal behavior “75 to 80 percent” of the time. Dr. Hickman noted that Nelson in particular experiences “a lot of impulse and a lot of raw energy and anger ... [that] he has no [insight] into whatsoever” as a result of his borderline personality disorder.
He further explained that borderline personality disorder can be especially “severe” in eases of maternal abandonment, and, in this case, Nelson’s abusive upbringing and rejection by his mother engendered a “rage toward women” that was evidenced by the nature of the crime that he committed. Dr. Hickman observed that Nelson’s borderline personality disorder was a consequence of growing up in a home where Nelson did not learn to control his anger and where he was subjected to psychologically abusive treatment by his mother, who told him that “he couldn’t do anything right” and that “she didn’t want him.” In Dr. Hickman’s judgment, at the time he committed the crime, Nelson “had a psychotic outburst” and was under the influence of “either a mental or physical form of duress” resulting from “his physical and psychological makeup.” Dr. Hickman also stated that, in addition to being “psychologically abused” by his mother, Nelson had “some family history which indicates disregard and abuse for women” and that “it is almost as if he is trained to be that way.” Additionally, Dr. Hickman noted that Nelson’s substance abuse likely exacerbated the effects of Nelson’s borderline personality disorder, describing “eruptive episodes, generally influenced by alcohol or cocaine, where all that primitive impulse comes out,” which were “guaranteed to be self-destructive.” In sum, Dr. Hickman observed that Nelson “has a morass of anger, hostility, given the combination of a borderline personality, given stress factors, given alcohol, given cocaine, all hell is going to break loose with him.”
Although Dr. Hickman testified that borderline personality disorder can be treated in some cases, he indicated that borderline personality disorder is difficult to treat because persons with borderline personality disorder do not want to “admit they are weak and vulnerable” and often refuse to undergo therapy. Dr. Hickman estimated that in Nelson’s case, it could take at least a year just to break down Nelson’s “defenses” and convince him to participate in treatment; after that, Nelson would require “long psychotherapy— and I’m talking about two to five years.
2. The Special Issues as Applied to Nelson’s Mitigating Evidence
As a threshold matter, the State contends that Penry and its progeny apply only to a very narrow set of cases in which the mitigating evidence is “double-edged,” i.e., has both aggravating and mitigating effect, and the future-dangerousness special issue gives the evidence only aggravating effect. Thus, according to the State, a Penry analysis in this case is not necessary. We disagree. The Supreme Court has never limited the applicability of Penry- — either explicitly or implicitly — to cases involving “double-edged” mitigating evidence. In Penry I, the Court’s observation that Penry’s evidence of mental illness was “two-edged” was just one of many reasons that the special issues were inadequate vehicles to give Penry’s evidence full mitigating effect; it was not the determining factor. See Penry I,
The second special issue was not inadequate because evidence worked only against Penry; it was inadequate because it did not allow the jury to give full effect to Penry’s mitigating evidence. Penry,492 U.S. at 323 ,109 S.Ct. 2934 . Our discussion of the third special issue- — whether the defendant’s conduct was unreasonable in response to the provocation — also focused on the inability of a juror to express the view that Penry lacked “the moral culpability to be sentenced to death” in answering the question. Id. at 324-25,109 S.Ct. 2934 . The point of Penry is clear: A death sentence resulting from application of the Texas special issues cannot be upheld unless the jurors are able to consider fully a defendant’s mitigating evidence. Accord, id. at 355,109 S.Ct. 2934 (SCALIA, J., concurring in part and dissenting in part) (The Court today holds that “the constitutionality turns on whether the [special] questions allow mitigating factors not only to be considered ..., but also to be given effect in all possible ways, including ways that the questions do not permit”).
See Johnson,
Further, the Court has indicated that Penry applies — or at least potentially could apply — in cases involving evidence that is not double-edged. See, e.g., Smith,
a. Deliberateness Special Issue
Nelson’s mitigating evidence of borderline personality disorder and abandonment by his mother had relevance beyond the scope of the deliberateness special issue. As the Supreme Court observed in Pemy I, a reasonable juror could have concluded that, while the murder was deliberate, Nelson was less morally culpable as a result of his borderline personality disorder and abusive childhood than a murderer without such a mental illness and similar upbringing might have been. See Penry I,
(1) he had been diagnosed with potentially organic learning disabilities and speech handicaps at an early age; (2) he had a verbal IQ score of 75 and a full IQ of 78 and, as a result, had been in special education classes throughout most of his time in school; (3) despite his low IQ and learning disabilities, his behavior at school was often exemplary; (4) his father was a drug addict who was involved with gang violence and other criminal activities, and regularly stole money from family members to support a drug addiction; and (5) he was only 19 when he committed the crime.
Smith,
b. Future-Dangerousness Special Issue
Likewise, the future-dangerousness special issue cannot give Nelson’s evidence full mitigating effect. The jury heard conflicting evidence about the treatability of Nelson’s borderline personality disorder and about the efficacy of any possible treatment. According to the expert testimony, even assuming that Nelson’s borderline personality disorder were treatable, success would depend on many factors. Based on this evidence, the jury could have easily concluded that it was unlikely that Nelson would successfully complete treatment. The State’s expert, Dr. Grigson, testified that there was insufficient information to make a diagnosis of antisocial personality disorder, but repeatedly emphasized that “in [his] opinion there is no question whatsoever that [Nelson] will commit future acts of danger.” In contrast, Nelson’s expert, Dr. Hickman, diagnosed Nelson with borderline personality disorder. He further testified that, with treatment consisting of incarceration, two to five years of intensive psychotherapy two to three times a week, medication, and refraining from drug and alcohol abuse, Nelson may not be continuing threat. He opined that if Nelson did not receive treatment, he would pose a danger to society. He also explained that “the last thing a borderline wants to do is admit they are weak and vulnerable,” and thus borderline patients often resist treatment. Indeed, in its own closing, the State emphasized the strong possibility that Nelson would not receive the treatment he needed to keep his borderline personality disorder in check, and even if he did receive such treatment, there were no guarantees that the therapy would be effective -to prevent future violence:
Dr. Hickman said, if, if, if, if he is imprisoned long enough, if he undergoes psychotherapy, if he chooses to take his medication, and if he leaves dope and alcohol alone, then maybe, maybe he won’t be a future danger. Look at Special Issue Number Two, ladies and gentlemen. There is not an asterisk next to that, there is not something referring you down here that says if, if, if, if. We look at the defendant right now, and right now even their witness [said], yes, he may be a danger.
Based on the expert testimony at trial, the jury might have concluded that Nelson could be treated, and therefore, it could have given some effect to this mitigating evidence within the context of the future-dangerousness special issue. But if the jury concluded that the condition was not treatable or that treatment was improbable, as the State argued, it would necessarily have to answer “yes” to the special issue. Just as in Penry I and Penry II, it is likely that a juror considering Nelson’s evidence of borderline personality disorder would have felt that he could give the evidence only one possible effect via the future-dangerousness issue: Such a juror would have seen the evidence as only aggravating, because Nelson’s borderline personality disorder and the difficulty of treating it increase the likelihood that Nelson will act out violently again. Consequently, there would be no vehicle to give
The State and the dissenting opinions of Chief Judge Jones and Judge Owen argue that the evidence at issue here is more comparable to the evidence of youth at issue in Johnson and Graham. Specifically, they contend that, because borderline personality disorder can be a “transient” condition like youth, a jury could believe that Nelson would be less dangerous in the future, thereby giving full mitigating effect to the evidence. We disagree. This argument erroneously analogizes evidence of youth and evidence of mental illness. The Supreme Court in Johnson held that the future-dangerousness issue could give effect to both mitigating aspects of youth — likelihood of future violent behavior and moral culpability — due to the uniquely transient nature of youth. See Johnson,
This is not simply a matter of disagreement with the state court’s conclusion that the jury could consider and give effect to Nelson’s mitigating evidence through the special-issues sentencing scheme. We are mindful that under AEDPA a federal court may not grant habeas relief simply because it disagrees with the state court’s resolution of an issue; it may grant relief only if the state court’s decision was contrary to or an unreasonable application of clearly established Supreme Court precedent. See 28 U.S.C. § 2254(d)(1). Indeed, Chief Judge Jones’s dissent invokes this standard, asserting that our approach to the future-dangerousness issue improperly “relies upon a string of hypotheticals to create [a] Penry violation” and adopts an “attenuated theory of the jury deliberations [that] extends Penry I far beyond its intended boundaries.” Chief Judge Jones’s Dissent at 21 n. 19; see also Judge Owen’s Dissent. But rather than extending the reach of Penry I or any other case in violation of the AEDPA standard of review, our approach merely follows the Supreme Court’s longstanding directive to determine only “whether the evidence is of such a character that it ‘might serve as a basis for a sentence less than death,’ ” which was clearly established federal law at the time that Nelson’s conviction became final. Tennard,
In contrast, the alternative approach, upon which the dissenting opinions of Chief Judge Jones and Judge Owen base their conclusions that the Texas Court of Criminal Appeals did not unreasonably apply clearly established federal law, would require us, sitting as a federal appellate habeas court, to weigh the evidence presented at sentencing in a manner that the Supreme Court in Tennard held was an unreasonable application of clearly established federal law at least as far back as 1991. See id. at 286-87,
Specifically, the dissenting opinions of Chief Judge Jones and Judge Owen run afoul of Tennard by assuming that the jury in Nelson’s case found that Nelson’s borderline personality disorder was treatable, and that the Texas Court of Criminal Appeals would therefore not have acted unreasonably in treating it as akin to the mitigating evidence of youth at issue in Graham and Johnson. However, we know from the record only that the jury determined that Nelson was a future danger after hearing conflicting expert testimony about whether he suffered from borderline personality disorder and, if so, whether it could be treated. Despite the purportedly definitive reading of the record contained in Chief Judge Jones’s dissent, we cannot be certain of the precise reasons for the jury’s future-dangerousness determination. Instead, we know that the jury could have arrived at its conclusion for any of the following reasons: (1) the jury believed that Nelson suffered from borderline personality disorder but that the disorder was not treatable; (2) the jury believed that Nelson suffered from borderline personality disorder that was treatable but that some other factor rendered Nelson a future danger; or (3) the jury did not believe that Nelson actually suffered from borderline personality disorder. To conclude that the mental illness at issue was treatable in the face of these multiple possibilities, the dissenting opinions of Chief Judge Jones and Judge Owen reassess and reweigh the evidence presented at sentencing, even though we, sitting as a federal appellate habeas court, have no way of knowing why the jury determined that Nelson was a future danger.
Weighing the evidence in this manner violates the Supreme Court’s express admonition in Tennard that we not substitute our own interpretation of the evidence for that of the jury or assess the strength of the mitigating evidence presented except “insofar as evidence of a trivial feature of the defendant’s character or the circumstances of the crime is unlikely to have any tendency to mitigate the defendant’s culpability.” Tennard,
Further, the Supreme Court has made it clear in Boyde and in Johnson (both issued before Nelson’s conviction became final) that once the low relevance threshold is satisfied, rather than inquiring into or second guessing the jury’s interpretation of the trial evidence, all a court must determine is whether a reasonable likelihood exists that the jury applied the instructions in a manner that precluded it from giving effect to the defendant’s mitigating evidence as it pertains to the defendant’s moral culpability. In the instant case, given the conflicting testimony regarding the treatability of Nelson’s mental illness, there is certainly a reasonable likelihood that the jury felt precluded from giving full effect to the impact of the evidence on Nelson’s moral culpability via the future-dangerousness issue because it found that Nelson’s illness could not be treated. See Johnson,
Therefore, rather than “extending] Penny I far beyond its intended boundaries, without instructions from the Supreme Court,” Chief Judge Jones’s Dissent at 346 n. 19, our approach is firmly grounded in Supreme Court precedent and consistent with the AEDPA standard of review. The alternative upon which the dissenting opinions of Chief Judge Jones and Judge Owen rely to affirm the state court’s denial of habeas relief in this case — that we scour the trial record for evidence of treatability and substitute our interpretation of the evidence for that of the jury’s — is not merely incorrect, but is an unreasonable application of clearly established federal law as announced by the Supreme Court. See Tennard,
This case is therefore different from the Supreme Court’s recent decision in Brown v. Payton,
Nevertheless, Judge Clement’s dissenting opinion, which relies on Payton to conclude that this court should defer to the Texas Court of Criminal Appeals’s denial of habeas relief, fails to recognize that “[t]he [AEDPA] standard is demanding but not insatiable; ... ‘[d]eference does not by definition preclude relief.’ ” Miller-El v. Dretke,
Finally, in support of its argument that evidence of a potentially treatable mental disorder should be analyzed similarly to the Court’s consideration of youth, the State relies on Fifth Circuit case law that has erroneously interpreted Penry as requiring that the mitigating evidence be given only “some effect.” Specifically, it relies on this court’s opinion in Lucas v. Johnson,
8. Sufficiency of Nelson’s Mitigation Evidence
We also reject the argument that Nelson’s evidence of borderline personality disorder is insufficient to warrant relief based on Penry. The Supreme Court has recognized that
gravity has a place in the relevance analysis, insofar as evidence of a trivial feature of the defendant’s character or the circumstances of the crime is unlikely to have any tendency to mitigate the defendant’s culpability. See Skipper [v. South Carolina,476 U.S. 1 ,] 7, n. 2,106 S.Ct. 1669 ,90 L.Ed.2d 1 (“We do not hold that all facets of the defendant’s ability to adjust to prison life must be treated as relevant and potentially mitigating. For example, we have no quarrel with the statement .. that ‘how often [the defendant] will take a shower’ is irrelevant to the sentencing determination[.”).].
Tennard,
[T]o say that only those features and circumstances that a panel of federal appellate judges deems to be “severe” (let alone “uniquely severe”) could have such a tendency is incorrect. Rather, the question is simply whether the evidence is of such a character that it “might serve ‘as a basis for a sentence less than death,’ ” Skipper, [476 U.S.] at 5,106 S.Ct. 1669 .
Tennard,
A Harmless Error
Finally, we reject the State’s argument that any Penry error in this case is subject to harmless-error analysis under Brecht v. Abrahamson,
Implicit in the Court’s failure to apply harmless error in cases where the jury has been precluded from giving effect to a defendant’s mitigating evidence is the recognition that a Penry error deprives the jury of a “vehicle for expressing its ‘reasoned moral response to the defendant’s background, character, and crime,’ ” which precludes it from making “ ‘a reli
Therefore, given the Supreme Court’s refusal to allow an appellate court to substitute its own moral judgment for a moral judgment that the jury was unable to make in a Penry case, we decline to do so now.
III. CONCLUSION
At the time that Nelson’s conviction became final, the Supreme Court had clearly established that the relevant inquiry is whether there was a reasonable likelihood
Notes
. Although the Texas legislature amended the special issues sentencing scheme in 1991, Nelson was sentenced under the pre-amendment version of the special issues. In some cases, the jury was also given a third special issue addressing provocation. Nelson’s jury did not receive a provocation instruction, and therefore we do not address that aspect of the pre-amendment special issues sentencing scheme here.
. The "constitutional-relevance” test required that petitioner’s evidence show "(1) a 'uniquely severe permanent handicap[] with which the defendant was burdened through no fault of his own' and (2) that the criminal act was attributable to this severe permanent condition.” Davis v. Scott,
. Chief Judge Jones authored an opinion; Judge Stewart concurred in the judgment only; and Judge Dennis filed a concurring opinion. Nelson v. Dretke,
. We note that the Supreme Court granted certiorari in Brewer v. Dretke,
. Tennard’s conviction became final when the Supreme Court denied certiorari on his direct appeal on June 28, 1991. Tennard v. Texas,
. The sui generis nature of youth in the death penalty context is perhaps best evidenced by the Supreme Court's categorical holding in Roper v. Simmons,
. Compare Johnson, in which the Supreme Court singled out youth, as opposed to other conditions that could be transitory, because its ephemeral nature is bound up in its mitigating impact such that a juror could not reasonably assess youth as a mitigating factor without taking into account this aspect of transience. See Johnson,
. The State's reliance on Calderon v. Coleman,
Concurrence Opinion
Concurring in the Judgment and Assigning Additional Reasons:
In this case we must decide whether petitioner, Billy Ray Nelson, was sentenced to death in violation of the Eighth Amendment because the jury was not instructed that it could consider and give effect to his mitigating evidence by deciding between the death penalty or a lesser sentence of life imprisonment. The three-judge panel of this court concluded that Nelson’s death penalty must be affirmed, but its members did not agree upon a majority rationale or opinion. Chief Judge Jones issued an opinion concluding that the pre-1991 Texas capital sentencing statute as applied to Nelson’s mitigating evidence and case did not violate the Eighth Amendment and affirming the district court’s judgment denying Nelson’s federal habeas corpus petition. I filed an opinion concurring in that result, concluding that, under the Supreme Court’s decisions in Penry v. Lynaugh,
After rehearing the case en banc, the majority of this court has now decided that the application of the pre-1991 Texas statutory capital sentencing scheme to Nelson’s case violated the Eighth Amendment and that this violation cannot be disregarded as harmless error. I join fully in the majority’s conclusions and agree substantially with its reasons. The majority’s analysis of Nelson’s Penry I claim is similar to that set forth in my separate panel opinions here and in other cases.
On the harmless error issue, I acknowledge my mistake at the panel level in undertaking a harmless error analysis of the constitutional defect in this ease. After considering the parties’ briefs and conducting my own additional research, I now see that (1) the State waived its harmless
1. The Eighth Amendment Requirement Of Individualized Sentencing Obliges States, Including Texas, To Enable Capital Sentencers To Select The Appropriate Penalty After Full Consideration Of The Defendant’s Mitigation Evidence.
The Supreme Court’s recognition of the constitutional requirements regarding individualized sentencing began in 1976, when the Court issued a series of major decisions concerning the constitutionality of the death penalty that altered the fundamentals of the Court’s death penalty jurisprudence.
Prior to Penry I, and certainly before Nelson’s conviction became final in 1994, the relevant Supreme Court decisions had clearly established the Eighth Amendment requirement of individualized sentencing in capital cases. See, e.g., McCleskey v. Kemp,
Nor is the Eighth Amendment’s concern with individual culpability limited to the selection phase;
2. Penry I Recognized That The Eighth Amendment Requires A Capital Sentencing Jury To Have The Ability To Both Consider And Give Effect To All Relevant Mitigating Evidence In Choosing A Sentence.
Given the pre-existing Eighth Amendment requirement that a capital sentencer must have individualized sentencing capability, it is not surprising that the Supreme Court in Penry I held that the Texas sentencing scheme was unconstitutional as applied when the Texas courts’ reading of the statute did not permit the jury as sentencer to either assess the defendant’s culpability or select the appropriate sentence. Consistent with the well established individualized sentencing principles that it had held to be required by the Eighth Amendment, the Supreme Court in Penry I held:
Underlying Lockett and Eddings is the principle that punishment should be directly related to the personal culpability of the criminal defendant. If the sen-tencer is to make an individualized assessment of the appropriateness of the death penalty, “evidence about the defendant’s background and character is relevant .... ” Moreover, Eddings makes clear that it is not enough simply to allow the defendant to present mitigating evidence to the sentencer. The sentencer must also be able to consider and give effect to that evidence in imposing sentence. Only then can we be sure that the sentencer has treated the defendant as a “uniquely individual human bein[g]” and has made a reliable determination that death is the appropriate sentence. “Thus, the sentence imposed at the penalty stage should re-*320 fleet a reasoned moral response to the defendant’s background, character, and crime.”
Penry I,
3. The Supreme Court Has Consistently Reaffirmed Penry I’s Holding That A Capital Sentencing Jury Must Be Able To Consider And Give Effect To All Relevant Mitigating Evidence In Selecting A Sentence.
In its immediately following 1990 term, the Supreme Court repeatedly reaffirmed and applied the holding of Penry I, i.e., that the Eighth Amendment requires that the capital sentencer be able to consider and give effect to all relevant mitigating evidence in selecting and imposing the appropriate life or death sentence. See Boyde v. California,
In Penry v. Johnson,
Penry I did not hold that the mere mention of “mitigating circumstances” to a capital sentencing jury satisfies the Eighth Amendment. Nor does it stand for the proposition that it is constitutionally sufficient to inform the jury that it may “consider” mitigating circumstances in deciding the appropriate sentence. Rather, the key under Penry I is that the jury be able to “consider and give effect to [a defendant’s mitigating] evidence in imposing sentence.”492 U.S., at 319 ,109 S.Ct. 2934 ,106 L.Ed.2d 256 (emphasis added). See also Johnson v. Texas,509 U.S. 350 , 381,113 S.Ct. 2658 ,125 L.Ed.2d 290 (1993) (O’CONNOR, J., dissenting) (“[A] sentencer [must] be allowed to give full consideration and full effect to mitigating circumstances” (emphasis in original)). For it is only when the jury is given a “vehicle for expressing its ‘reasoned moral response’ to that evidence in rendering its sentencing decision,” Penry I,492 U.S., at 328 ,109 S.Ct. 2934 ,106 L.Ed.2d 256 , that we can be sure that the jury “has treated the defendant as a ‘uniquely individual human bein[g]’ and has made a reliable determination that death is the appropriate sentence,” id., at 319,492 U.S. 302 ,109 S.Ct. 2934 ,106 L.Ed.2d 256 (quoting Woodson v. North Carolina,428 U.S. 280 , 304, 305,96 S.Ct. 2978 ,49 L.Ed.2d 944 (1976)).
Penry II,
Applying the rule of Penry I again, the Court in Penry II held that the pre-1991 Texas capital sentencing scheme was unconstitutional as applied in Penry’s second capital sentencing for essentially the same
In 2004, the Supreme Court twice reaffirmed the rule of Penry I in Texas death penalty cases. In Tennard v. Dretke,
In Tennard, the Court first summarized the rules of federal law it had recognized in Penry I, that: (1) the pre-1991 Texas capital sentencing scheme “provided a constitutionally inadequate vehicle for jurors to consider and give effect to the mitigating evidence of mental retardation and childhood abuse .... ” Tennard,
The Tennard court next called upon us to comply with the rules of federal law it had established concerning the introduction and use by the sentencing body of a defendant’s mitigating evidence in a capital case. It adduced its holding in McKoy that in capital cases the “meaning of relevance is no different in the context of mitigating evidence ... than in any other context, and thus the general evidentiary
Further, the Court commented on and quoted from its opinion in Skipper v. South Carolina,
The Tennard court also held that the Fifth Circuit had erred in creating and applying its own restrictive gloss — its “constitutional relevance” rule
Finally, the Tennard court held that evidence of impaired intellectual functioning is obviously evidence under the clearly established relevance standard that “ ‘might serve “as a basis for a sentence less than death,”’ ” id. at 287,
Justice O’Connor wrote the opinion for a six-member majority in Tennard, and was joined by Justices Stevens, Kennedy, Souter, Ginsburg and Breyer.
Shortly after Tennard, in Smith, the Supreme Court reiterated that the standard relevance test governs the admission
In Smith, the defendant had presented evidence that (1) he had potentially organic learning disabilities and speech handicaps; (2) he had a verbal IQ of 75, a full IQ of 78, and had been in special education classes in school; (3) his behavior at school was often exemplary, notwithstanding his low IQ and learning disabilities; (4) his father was a drug addict and violent criminal who regularly stole money from his family to support his drug addiction; and (5) he was only 19 years old at the time of his crime. Id. at 41,
Seven members of the Court joined the per curiam opinion in Smith, including Chief Justice Rehnquist and Justices O’Connor, Stevens, Kennedy, Souter, Ginsburg, and Breyer. Justice Scalia, joined by Justice Thomas, dissented, saying only that he would affirm the judgment of the Texas Court of Criminal Appeals and adhering to his longstanding position in Walton v. Arizona,
Finally, in 2006, the Court again confirmed the Penry I rule requiring that a capital sentencing jury be able to consider and give effect to relevant mitigating evidence in the selection of the appropriate life or death sentence. See Oregon v. Guzek,
In sum, the Supreme Court has continued to reaffirm and apply the Pewry I rule in many cases since its inception in 1989, has recognized its application to cases involving such relevant mitigating evidence as impaired intellectual function, low IQ, troubled and abusive childhood, participation in special education classes, and mental retardation, and has developed numerous auxiliary jurisprudential rules in
4. The Court’s Cases Demonstrate That Johnson Does Not Change or Limit The Penry I Rule; It Merely Establishes Auxiliary Principles Relating To Its Application.
Contrary to the argument by the State and my dissenting colleagues, the Supreme Court in Johnson did not change or limit the Penry I rule that the Eighth Amendment requires that a capital sentencing jury must be able to give full consideration and effect to all of a defendant’s relevant mitigating evidence in imposing the appropriate life or death sentence. In Johnson, the Court merely recognized three auxiliary principles for implementing the Penry I rule: (1) Because of the unique manner in which youth mitigation evidence aligns the inquiry into future dangerousness with an assessment of culpability or deathworthiness, a defendant’s relevant mitigating evidence of youth may be given full consideration and effect by the jury’s answer to the future dangerousness special issue; (2) In order to determine whether a Penry violation occurred, a reviewing court must ask whether there is a reasonable likelihood that the jury has applied the special issues in a way that prevents it from giving full consideration and effect to any relevant mitigating evidence; and (3) the state may shape and structure the jury’s consideration so long as it does not preclude the jury from giving effect to any relevant mitigating evidence, because, as the Court subsequently explained, “[o]ur consistent concern has been that restrictions on the jury’s sentencing determination not preclude the jury from being able to give effect to mitigating evidence.” Buchanan v. Angelone,
That Johnson established these auxiliary principles and did not change or limit the rule of Penry I itself was most clearly demonstrated by the Court’s decision in Buchanan. In that case, the Court held that the state trial court’s refusal to give instructions on the concept of mitigation and on particular statutorily defined mitigating factors did not violate the Eighth and Fourteenth Amendments. Id. at 276-78,
In the eligibility phase, the jury narrows the class of defendants eligible for the death penalty, often through consideration of aggravating circumstances. In the selection phase, the jury determines whether to impose a death sentence on an eligible defendant ....
.... It is in regard to the eligibility phase that we have stressed the need for channeling and limiting the jury’s discretion to ensure that the death penalty is a proportionate punishment and therefore not arbitrary or capricious in its imposition. In contrast, in the selection phase, we have emphasized the need for a broad inquiry into all relevant mitigating evidence to allow an individu*326 alized determination. Tuilaepa, supra, at 971-73,114 S.Ct., at 2634-36 ; Romano v. Oklahoma,512 U.S. 1 , 6-7,114 S.Ct. 2004 , 2008-09,129 L.Ed.2d 1 (1994); McCleskey v. Kemp,481 U.S. 279 , 304-06,107 S.Ct. 1756 , 1773-75,95 L.Ed.2d 262 (1987); Stephens, supra, at 878-79,103 S.Ct., at 2743-44 ....
In the selection phase, our cases have established that the sentencer may not be precluded from considering, and may not refuse to consider, any constitutionally relevant mitigating evidence. Penry v. Lynaugh,492 U.S. 302 , 317-18,109 S.Ct. 2934 , 2946-47,106 L.Ed.2d 256 (1989); Eddings v. Oklahoma,455 U.S. 104 , 113-14,102 S.Ct. 869 , 876-77,71 L.Ed.2d 1 (1982); Lockett v. Ohio,438 U.S. 586 , 604,98 S.Ct. 2951 , 2961-65,57 L.Ed.2d 973 (1978). However, the state may shape and structure the jury’s consideration of mitigation so long as it does not preclude the jury from giving effect to any relevant mitigating evidence. Johnson v. Texas,509 U.S. 350 , 362,113 S.Ct. 2658 , 2666,125 L.Ed.2d 290 (1993); Penry, supra, at 326,109 S.Ct., at 2951 ; Franklin v. Lynaugh,187 U.S. 164 , 181,108 S.Ct. 2320 , 2331,101 L.Ed.2d 155 (1988). Our consistent concern has been that restrictions on the jm-y’s sentencing determination not preclude the jury from being able to give effect to mitigating evidence.
Id. at 275-76,
Thus, as the Buchanan Court read Pen-ry I together with Johnson, Tuilaepa, Romano and other cases, the rule of Penry I is not limited by Johnson at all. Instead, the Penry I holding that the Eighth Amendment requires that a capital sentencing jury be able to consider fully and give effect to the defendant’s relevant mitigating evidence by selecting the appropriate sentence stands unlimited and unscathed by Johnson. Johnson, as read by Buchanan, merely establishes precedent for application of the Boyde test and adds that a State may shape and structure mitigation consideration so long as it does not prevent the sentencer from giving effect to the mitigating evidence.
Moreover, as pointed out earlier, since Johnson was decided, the Court in Penry II, Tennard, and Smith repeatedly reaffirmed the rule and holding of Penry I as Justice O’Connor described it, first, in Penry I itself, next, in her dissent in Johnson, again in the six-member majority of Penry II, and finally in Tennard. In her Johnson dissent, Justice O’Connor stated:
[In Penry 2], we plainly held that the Texas special issues violated the Eighth Amendment to the extent they prevented the jury from giving full consideration and effect to a defendant’s relevant mitigating evidence.
Penry was in no way limited to evidence that is only aggravating under the “future dangerousness” issue. We stated there that “Eddings makes clear that it is not enough simply to allow the defendant to present mitigating evidence to the sentencer. The sentencer must also be able to consider and give effect to that evidence in imposing sentence.” That we meant “full effect” is evident from the remainder of our discussion. We first determined that Penry’s evidence of mental retardation and his abused childhood was relevant to the question whether he acted deliberately under the first special issue. But having some relevance to an issue was not sufficient, and the problem was not, as the Court today suggests, simply that no jury instruction defined the term “deliberately.” Instead, we noted that the jury must be able to give effect to the evidence as it related to Penry’s “[p]er-sonal culpability,” which “is not solely a*327 function of a defendant’s capacity to act ‘deliberately.’ ” The jury could not give full effect to Penry’s evidence under the first special issue because “deliberately” was not defined “in a way that would clearly direct the jury to consider fully Penry’s mitigating evidence as it bears on his personal culpability.” That is, the evidence had relevance beyond the scope of the first issue.
Johnson,
Significantly, too, Justice Kennedy, Johnson’s, author, joined the six member majorities in Penry II and Tennard, and the seven member majority in Smith. Further, Tennard and Smith made clear that the rule of Penry I applies to all categories of mitigating evidence that are relevant to the assessment of a defendant’s diminished culpability or that might cause a jury through its reasoned moral response to select life imprisonment rather than a death sentence for the defendant. These decisions, along with Buchanan, have resoundingly ratified and continued to uphold Justice O’Connor’s view as expressed in Penry I that the Eighth Amendment requires that a capital sentencing jury be able to fully consider defendant’s relevant mitigating evidence by using that evidence to assess his moral culpability and to give full effect to that evidence by selecting the appropriate life or death sentence for him in that case.
Also, as the Court has made clear in Buchanan, Tennard, Smith, and other cases, the State’s ability to shape and structure the capital sentencer’s consideration of mitigation evidence may not be used to “preclude the jury from giving effect to any relevant mitigating evidence” by selecting the appropriate sentence for the offender in each case. Buchanan,
The instruction informed the jurors that if they found the aggravating factor proved beyond a reasonable doubt then they “may fix” the penalty at death, but directed that if they believed that all the evidence justified a lesser sentence then they “shall” impose a life sentence. The jury was thus allowed to impose a life sentence even if it found the aggravating factor proved. Moreover, in contrast to the Texas special issues scheme in question in Penry, the instructions here did not constrain the manner in which the jury was able to give effect to mitigation.
Id. at 277,
Furthermore, as described earlier, the Court in Tennard and Smith emphatically held that state and inferior federal courts may not through judicial glosses or otherwise create ad hoc or common law type threshold or screening rules that cut short appellate review of death penalty cases and thus indirectly have the effect of approving and encouraging constraints upon the manner in which the capital sentencing juries are able to give full effect to relevant mitigating evidence in the selection of the appropriate death or life imprisonment sentence in individual cases.
The reaffirmation of Penry I’s rule that the capital sentencing jury be able to give both full consideration and full effect to relevant mitigating evidence, moreover, necessitates realigning the Boyde test analogue for application to the present case in which, allegedly, the capital sentencer was
In Boyde, although the jury was instructed that it must impose the death penalty if it found the aggravating circumstances to outweigh the mitigating circumstances and a life imprisonment sentence if it found vice versa, the jurors retained a great deal of discretion in that they could decide what weight to assign the aggravating and mitigating factors and they were fully enabled to make the ultimate choice of whether to impose or withhold the death penalty. Thus, the California system in Boyde was markedly different from the pre-1991 Texas system under which the jury was not legally authorized to choose between life and death sentences in any case. In Boyde, the defendant argued that although the jury retained significant sentencing discretion, his constitutional rights were violated because the jury was given an instruction that could have misled it into thinking it was not free to consider his mitigating evidence of background and character in deciding whether to impose the death penalty. Near the beginning of the Supreme Court opinion, Chief Justice Rehnquist reaffirmed the rule of Penry I: “The Eighth Amendment requires that the jury be able to consider and give effect to all relevant mitigating evidence offered by petitioner.” Boyde,
In this case we are presented with a single jury instruction. The instruction is not concededly erroneous, nor found so by a court, as was the case in Stromberg v. California,283 U.S. 359 ,51 S.Ct. 532 ,75 L.Ed. 1117 (1931). The claim is that the instruction is ambiguous and therefore subject to an erroneous interpretation. We think the proper inquiry in such a case is whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence. Although a defendant need not establish that the jury was more likely than not to have been impermissibly inhibited by the instruction, a capital sentencing proceeding is not inconsistent with the Eighth Amendment if there is only a possibility of such an inhibition. This “reasonable likelihood” standard, we think, better accommodates the concerns of finality and accuracy than does a standard which makes the inquiry dependent on how a single hypothetical “reasonable” juror could or might have interpreted the instruction.
Id. at 380,
Because the capital sentencing jury in the present case, like the jury in Penry I, was not free or able to choose a life imprisonment sentence for Nelson, the alleged constitutional deficiency here affected the jury’s ability to both “consider and give effect” to Nelson’s relevant mitigating evi
Because of the unique nature of the youth mitigation evidence at issue in Johnson, the Court there apparently considered that only an alleged failure in the jury’s ability to consider the evidence was at issue. The Court in Johnson must have concluded that the jury was fully capable of giving effect to the mitigating evidence by selecting the sentence if the jury instruction had not precluded them from giving it full consideration. Thus, the situations posing only unitary errors in both Boyde and Johnson were quite similar in this respect despite other differences in the two sentencing systems. Consequently, there was no need for the Court to consider further reshaping the Boyde test analogue that it derived from its Boyde decision. For all of these reasons, the Johnson Court’s use of a Boyde test analogue capable of testing only for a preclusion of the jury’s ability to consider the evidence should not prevent courts from reshaping the analogue test to make it suitable for detecting a preclusion of both the jury’s ability to consider and to give effect to relevant mitigating evidence.
Considering all of the foregoing reasons, I conclude that the Court’s decisions subsequent to Johnson demonstrate that neither it nor any other decision has been read as limiting or changing the constitutional requirements and principles established in Penny I.
5. Texas’ Pre-1991 Capital Sentencing Scheme Provided a Constitutionally Inadequate Vehicle for Jurors to Consider and Give Effect to the Mitigating Evidence that Nelson Presented.
As I explained above, by the time Nelson’s conviction became final in 1994, the relevant Supreme Court cases had clearly established that in order to constitutionally impose and carry out the death penalty, a capital sentencer must be enabled: (1) to make an individualized assessment of each defendant’s moral culpability and death-worthiness and (2) to give full effect to that evidence by selecting between either life imprisonment or death as the appropriate sentence.
In this case, Nelson presented evidence during the punishment phase of his trial that (1) he was rejected by his mother; (2) he abused drugs and alcohol; (3) he had troubled relationships with his brother and with women; (4) he had fathered a child, with whom he was not allowed to have a relationship; and (5) he suffered from bor
It is abundantly clear that there is more than a reasonable likelihood that the jury was not permitted to fully consider and give effect to Nelson’s mitigating evidence, as the “deliberateness” and “future dangerousness” special issues did not permit the jury to consider how that evidence affected their assessment of Nelson’s moral culpability or to agree upon whether the death penalty or life imprisonment was the appropriate sentence in his case. There can be no question that Nelson’s mitigating evidence, particularly his evidence of a frequently disorienting borderline personality disorder, a medically recognized mental illness,
6. The Restrictive Glosses Applied, At The Panel Level In This Case And Others Have No Basis In The Supreme Court’s Decisions.
As the Supreme Court made unmistakably clear in Tennard, this court is not permitted to artificially or ingeniously narrow Penny I by imposing screening tests or placing restrictive glosses on the Supreme Court’s jurisprudence. Tennard,
In holding that Nelson’s mitigating evidence could be considered within the context of the special issues, the state court and Chief Judge Jones’ panel opinion in this case erroneously relied on pre-Ten-nard Fifth Circuit precedent that, like the defunct “constitutional relevance” test, are unsupported by the Supreme Court’s cases. The state court and Chief Judge Jones’ panel opinion used such cases to find that both Nelson’s evidence concerning his background and troubled relationships and his evidence of voluntary intoxication could be sufficiently considered within the scope of the special issues. See Nelson,
Even more troubling is Chief Judge Jones’ panel opinion’s resort to yet another of this circuit’s restrictive glosses on the Supreme Court’s Penry jurisprudence, in the form of the “treatable mental disorder” test, under which evidence of a mental disorder that is only theoretically treatable is not considered Penry evidence. Nelson,
In addition, I agree with the majority’s decision to reject the wholly-unfounded “double-edged” evidence rule. This court has sometimes used Johnson to deny Pen-ry claims by stating that Johnson adopted a so-called “double-edged” evidence rule, under which mitigating evidence does not trigger Penry scrutiny unless a juror considering the evidence could give it only aggravating, and not mitigating, effect under the special issues. See, e.g., Cole v. Dretke,
7. The State’s Failure To Enable Its Capital Sentencing Jury To Give Full Consideration And Effect To Nelson’s Relevant Mitigating Evidence Cannot Be Harmless Error.
i. The State Waived Its Harmless Error Argument.
The state did not argue that any Penry error in this case could be harmless until
Although I did not consider the effect of the state’s failure to raise harmless error in my concurring panel opinion, I am now convinced that the state waived any argument concerning harmless error by failing to raise it in the district court. Moreover, applying the factors set out in Giovannetti, it is clear that this is not a case in which we should exercise our discretion to overlook that waiver. The record in Nelson’s case is substantial and the issues are complex; it is certainly debatable whether the trial court’s error is, or could ever be, harmless (indeed, I conclude below that such an error is reversible per se); and reversing Nelson’s death sentence and ordering a new sentencing proceeding at which the jury is permitted to fully consider Nelson’s mitigating evidence in determining the appropriate sentence cannot be considered a futile act. Accordingly, this court can properly conclude that the state has waived harmless error review and that this is not an appropriate case in which this court should disregard the state’s waiver.
ii. A Penny Error Is A Structural Defect That Is Not Susceptible To Harmless Error Review.
Under principles of law clearly established by the Supreme Court’s decisions, the constitutional violation in this case was a “structural defect” that cannot be analyzed as harmless “trial error.” This is because the violation was not a discrete error that a reviewing court can determine from the record had no substantial and injurious effect or influence on the jury’s determination of the sentence. Rather, the violation was the State’s failure in this case to enable its capital sentencing jury to give full effect to Nelson’s relevant mitigating evidence in determining the sentence.
The history and purpose of harmless error review demonstrates why it is inappropriate in this case. The dichotomy between errors of constitutional dimension that may be found to be harmless and those that may not began with Chapman v. California,
Some twenty-four years after Chapman, building on the dichotomy it recognized, the Court in Arizona v. Fulminante,
In Fulminante, the Court also recognized that since Chapman it had added to the category of structural constitutional errors not subject to harmless error the following: “unlawful exclusion of members of the defendant’s race from a grand jury;”
Two years later, the Supreme Court in Sullivan v. Louisiana,
not what effect the constitutional error might generally be expected to have upon a reasonable jury, but rather what effect it had upon the guilty verdict in the case at hand. Harmless-error review looks ... to the basis on which the jury actually rested its verdict. The inquiry, in other words, is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error. That must be so, because to hypothesize a guilty verdict that was never in fact rendered — no matter how inescapable the findings to support that verdict might be — would violate the jury-trial guarantee.
Id. at 279,
Since, for the reasons [just] described ..., there has been no jury verdict within the meaning of the Sixth Amendment, the entire premise of Chapman review is simply absent. There being no jury verdict of guilty-beyond-a-reasonable-doubt, the question whether the same verdict of guilty-beyond-a-reasonable-doubt would have been rendered absent the constitutional error is utterly meaningless. There is no object, so to speak, upon which harmless-error scrutiny can operate. The most an appellate court can conclude is that a jury would surely have found petitioner guilty beyond a reasonable doubt — not that the jury’s actual finding of guilty beyond a reasonable doubt would surely not have been different absent the constitutional error. That is not enough. The Sixth Amendment requires more than appellate speculation about a hypothetical jury’s action, or else directed verdicts for the State would be sustainable on appeal; it requires an actual jury finding of guilty.
Id. at 280,
Also in 1993, the Supreme Court in Brecht changed the harmless error rule
Tidal error “occur[s] during the presentation of the case to the jury,” and is amenable to harmless-error analysis because it “may ... be quantitatively assessed in the context of other evidence presented in order to determine [the effect it had on the trial].” At the other end of the spectrum of constitutional errors lie “structural defects in the constitution of the trial mechanism, which defy analysis by ‘harmless-error’ standards.” The existence of such defects— deprivation of the right to counsel, for example — requires automatic reversal of the conviction because they infect the entire trial process. Since our landmark decision in Chapman v. California, we have applied the harmless-beyond-a-reasonable-doubt standard in reviewing claims of constitutional error of the trial type.
Id. at 629-30,
Accordingly, in habeas corpus proceedings, even after Brecht, “structural” constitutional defects, as opposed to constitutional “trial errors,” are always considered “prejudicial” and reversible per se. Reviewing courts may not subject them to harmless error analysis or declare them to be harmless under any standard.
Applying the foregoing principles, I conclude that the constitutional violation that occurred when the pre-1991 Texas capital sentencing system was applied to a case in which a defendant had introduced mitigating evidence that reasonably may have caused a sentencer to impose a sentence of less than death, the violation was caused not by a “trial error” but by a “structural defect” that is not subject to harmless error analysis.
More specifically, the defect plainly is not a “trial error,” which “occur[s] during the presentation of the case to the jury,” and is amenable to harmless-error analysis. Fulminante,
That the constitutional violation in Pen-ry I and this case resulted from a “structural defect” that is not susceptible to harmless error analysis is even more clearly shown by applying Justice Scalia’s first analysis in Sullivan. According to Sullivan, as a court reviewing for harmless error, we are, instructed to consider “not what effect the constitutional error might generally be expected to have upon a reasonable jury, but rather what effect it had upon the ... verdict in the case at hand .... The inquiry, in other words, is not whether, in a [sentencing proceeding] that occurred without the error, a [death penalty] would surely have been [imposed], but whether the [death penalty actually imposed] in this [capital sentencing proceeding] was surely unattributable to the error.” Sullivan,
Having reached the foregoing conclusions after additional study and a better understanding of the applicable legal principles, I must acknowledge and correct the errors in the premise and the result of my separate panel opinion in this case.
My initial error resulted from my faulty appreciation of the correlation between (1) the Supreme Court’s statement in Johnson that “[t]he standard against which we assess whether jury instructions satisfy the rule of Lockett and Eddings was set forth in Boyde v. California.” Johnson,
Second, having erroneously concluded that a harmless error analysis could be performed on the structural defect in this case, I unintentionally compounded my mistake by attempting to apply the Brecht test “to the hypothesizing of events that never in fact occurred. Such an enterprise is not factfinding, but closer to divination.” Dominguez Benitez,
For these reasons, the deprivation of the defendant’s right to a sentencing jury that was able to consider and give effect to all of his relevant mitigating evidence by selecting the appropriate sentence for him in the particular case, with consequences that are necessarily unquantifiable and indeterminate, unquestionably qualifies as “structural defect”, not a “trial error.”
Conclusion
For these reasons, I concur in the judgment of the majority opinion.
. See, e.g., Cole v. Dretke,
. In my dissent from a previous decision, I reached the same conclusion with respect to the Penry I violation in that case, i.e., that it was a structural defect, not a trial error, and therefore could not be subjected to harmless error analysis. See Hernandez v. Johnson,
. See Gregg v. Georgia,
. In Tuilaepa v. California,
. See also Tison v. Arizona,
. Under the Fifth Circuit’s rule at that time, to be constitutionally relevant, the defendant's mitigating evidence had to show (1) a uniquely severe permanent handicap with which the defendant was burdened through no fault of his own, and (2) that the defendant's criminal act was attributable to that severe condition.
. Nelson's expert psychiatric witness, Dr. Hickman, testified that his borderline personality disorder caused him to experience sudden, violent outbursts of emotion that clouded his judgment. See Nelson v. Dretke,
. The Supreme Court recently granted certio-rari in a case involving this rule. See Brewer v. Dretke,
. Id. at 23 n. 8,
. Id. (citing Gideon v. Wainwright,
. Id. (citing Tumey v. Ohio,
. Price v. Georgia,
. Id. at 310,
. Id. (citing McKaskle v. Wiggins,
. Id. (citing Waller v. Georgia,
. I am aware, of course, that Justice Scalia’s Sullivan analysis is based on the Sixth Amendment, while a Penry violation is based upon an Eighth Amendment defect in the framework of a capital sentencing proceeding. Nevertheless, I believe that the teachings of Sullivan are helpful and directly applicable to the question of whether a Pemy error is a structural defect not subject to harmless error analysis. As Sullivan acknowledges, its analysis is also fully consistent with Chief Justice Rehnquist’s more general analysis for determining whether a constitutional violation is a structural defect or a trial error in Fulminante, which is not tied to the Sixth Amendment or to any other specific constitutional amendment. See Sullivan,
Dissenting Opinion
join dissenting from the majority opinion:
I. BACKGROUND
This court voted to rehear Nelson’s case en banc because we are divided over how to interpret recent Supreme Court cases— Penry II, Tennard, and Smith — concerning Texas’s pre-1991 death penalty statute. Three years ago, we reheard the Robertson case en banc because we were divided over interpretation of the Supreme Court’s Texas death penalty case law leading up to and including Penry II.
The majority opinion grants habeas relief to Nelson based on an adjective. It concludes that Nelson’s mitigating evidence could not be given “full effect” by the jury at sentencing due to the inadequacy of the pre-1991 Texas death penalty special issues. It concludes, based on some language in the Court’s opinions, that “full effect,” not just “some effect,” is now the baseline for constitutionally adequate jury evaluation of a defendant’s mitigating evidence.
This conclusion marks a surprising result in a habeas petition governed by AEDPA, which mandates affirmance of state criminal convictions unless the state court’s decision was contrary to, or an unreasonable application of, federal law. First, Nelson proffered mitigating evidence of a sort that this court has frequently encountered: (1) his mother rejected him and he had no relationship with a child he had sired; (2) he was intoxicated by drugs and alcohol when he committed the crime; (3) he had troubled relationships with his brother and women; and (4) he suffered from a treatable borderline personality disorder. This court has upheld numerous capital sentences against claims that similar evidence could not be given sufficient effect by Texas juries under the pre-1991 statutes. The Supreme Court has frequently refused to review those decisions, and prisoners were executed.
Second, the majority’s reasoning implies that the Penry line of cases, which was described by the Court as an “exception” to the “rule,” commencing with Jurek, of the overall constitutionality of the Texas sentencing issues,
This court cannot “underrule” the Supreme Court. Our duty is to harmonize its decisions as well as possible. We are always bound by the force of stare decisis, which caused Justice Kennedy to comment in Johnson that
[t]he interests of the State of Texas, and of the victims whose rights it must vindicate, ought not to be turned aside when the State relies upon an interpretation of the Eighth Amendment approved by this Court, absent demonstration that our earlier cases were themselves a misinterpretation of some constitutional command.
Johnson,
II. THE “CLEARLY ESTABLISHED” LAW
With this preface, a closer analysis of the majority’s opinion can begin. Billy Ray Nelson’s habeas petition was rejected by the state courts for reasons that had nothing to do with this court’s now-abandoned “constitutional relevance” and “uniquely severe” evidentiary thresholds. See Tennard v. Dretke,
Nevertheless, and despite the demanding AEDPA “unreasonableness standard,”
The majority opinion cites every instance in which opinions of the Court — in dicta or dissents — have employed the term “full effect”. Unfortunately, the course of the Court’s jurisprudence, in our view, is far more complex than reliance on one adjective — -“full”—would suggest.
In the beginning, in Jurek v. Texas,
This assessment of the special issues was confirmed in Franklin v. Lynaugh,
Ultimately, the question of what exactly it means for a court to give “full consideration” to a habeas petitioner’s mitigating evidence was answered in the cases of Graham v. Collins,
Just months later, a majority of the Court in Johnson reaffirmed the reasoning of Graham, in a direct appeal in which the appellant’s youth as an offender was his major mitigating quality. Justice Kennedy’s opinion drew heavily from Graham, re-emphasizing that while
Lockett and Eddings prevent a state from placing relevant mitigating evidence beyond the effective reach of the sentencer, ... we have held that there is no ... constitutional requirement of unfettered sentencing discretion in the jury, and states are free to structure and shape mitigating evidence in an effort to achieve a more rational and equitable administration of the death penalty.
Johnson,
The Court concluded Johnson with the observation, originating in Graham, that Jurek would have to be overruled if, whenever a defendant proffers mitigating evidence “that has some arguable relevance beyond the special issues,” a fourth jury issue in mitigation would be required. Id. at 372,
Graham and Johnson are majority opinions of the Court.
To quote Graham again: “In Penry, the defendant’s evidence was placed before the sentencer but the sentencer had no reliable means of giving mitigating effect to that evidence.” Graham,
The Court’s subsequent decisions in Penry II, Tennard v. Dretke, and Smith v. Texas have muddied the waters, but they have not replaced, much less overruled, Jurek, Franklin, Graham, and Johnson. Each of the more recent cases resolves a narrow procedural issue. Penry II considered the sufficiency of a “nullification instruction” to the jury that Texas courts thought would alleviate the problem in Penry’s case. The Court explained why the nullification instruction would cause jurors to violate their oaths if they felt, notwithstanding that Penry’s condition required a positive answer to his deliberateness and future dangerousness, he was less culpable because of his mental retardation. The Court’s opinion mentions “full effect” once, but its overruling of the nullification instruction was not tied to whether the jury could give “full effect” to Penry’s mitigating evidence. The jurors’ catch-22 was independent of the amount of the mitigating effect.
In Tennard, the Court held that the Fifth Circuit’s “uniquely severe permanent handicap” and “nexus” tests for identifying Penry evidence were incorrect, and that for COA purposes, “reasonable jurists would find debatable or wrong the District Court’s disposition of Tennard’s low-IQ-based Penry claim.” Tennard,
Nowhere does Tennard require that the jury be able to give “full effect” to mitigating evidence in its sentencing deliberations. Instead, the Court quotes a potpourri of earlier decisions requiring states to enable the jury to “consider and give effect to” mitigating evidence;
A final word about Tennard: Justice Kennedy concurred. Does this mean that he had changed his mind since he wrote Johnson, or that he viewed Tennard as reconcilable with Johnson? A “reasonable jurist” would draw the latter conclusion, since one can hardly assume Justice Kennedy would have failed to explain his departure from the very explicit cabining of Penry I that he accomplished with the majority opinion in Johnson.
Smith v. Texas,
This court may not overlook the potentially broad language in Smith. On the other hand, Smith failed to cite or distinguish Jurek, Franklin, Graham, or Johnson. Since Chief Justice Rehnquist and Justice Kennedy joined Smith, the question again arises whether they did so in deference not just to a limited view of Penry II and Tennard but also, and without explanation, to a de facto overruling of Graham and Johnson through Smith’s casual incorporation of the appellant’s youth, good school behavior, and disadvantaged
Finally, notwithstanding Smith’s two references to “full effect,” the opinion also quotes Penry II as recognizing that “the key under Penry I is that the jury be able to ‘consider and give effect to [a defendant’s mitigation evidence] in imposing sentence.’ ” Smith,
“Giving effect” to mitigating evidence is not the same as allowing a jury to give “full effect.” The latter formulation, in effect, rejects a state’s ability to focus the jury’s consideration of mitigating evidence. Here lies the crux of our difference with today’s majority opinion. Despite its efforts to turn narrow procedural decisions and imprecise language into a constitutional mandate of “full effect,” the Supreme Court’s case law will not support that conclusion. As an inferior court, we can overlook neither Jurek, Franklin, Graham, and Johnson, nor Penry I, Penry II, Ten-nard and Smith. Sadly, for the State of Texas, for certainty and stare decisis, and for defendants who deserve to know their fate before the last minute, we seem no further along in understanding the Court’s pronouncements today than we were fifteen years ago when we reheard Graham en banc. See Graham v. Collins,
The interrelated rules we believe must be holistically drawn from the Court’s decisions — until we are told otherwise — are as follows: First, courts must consider all mitigating evidence for its comprehensibility within the Texas special issues. Second, if, as with Penry I and Tennard low IQ evidence, the proffered evidence has only aggravating force beyond the issues of deliberateness and future dangerousness, re-sentencing is required. In such cases, the proffered evidence was “beyond the effective reach of the jury” such that “the jury was precluded from considering the evidence.” Third, evidence of such qualities as a defendant’s youthfulness at the date of the crime and a “transient” upbringing
III. THE MITIGATING EVIDENCE
Nelson offered in evidence that (i) his mother rejected him; (2) he had troubled relationships with his brother and women; (3) he was denied a relationship with his child; (4) he was intoxicated by drugs and alcohol when he committed the crime; and (5) he suffered from a treatable borderline personality disorder. The majority opinion dwells principally on the last element, subsidiarily on the rejection by his mother, and not at all on Nelson’s substance abuse or other troubled relationships. Consequently, we focus on the first two characteristics. It must be pointed out, though, that the majority’s “full effect” test apparently renders the pre-1991 Texas sentencing hearing constitutionally inadequate for any mitigating evidence except for youthfulness (and good behavior in prison).
Nelson’s expert, Dr. Hickman, testified that Nelson had anger issues resulting from his childhood experiences, and that treatment for his borderline personality disorder would require long-term psychotherapy and medication. Hickman also suggested that individuals with borderline
Nelson’s evidence is fundamentally distinguishable from that of Penry, who was presented as being beyond treatment because of an insufficient mental acuity and inability to learn from his mistakes. In contrast, Nelson’s defense offered the jury evidence that Nelson could get better, and that if he spent the rest of his life in prison, he would no longer represent a future danger to society. Unlike Penry, but like the defendant in Graham, Nelson’s attorneys could honestly and “vigorously urge[ ] the jury to answer ‘no’ to the special issues based upon” the evidence presented. Graham,
With regard to the “deliberateness” of the crime, Nelson’s jury could have concluded, based on his maternally-deprived upbringing, his “anger issues” and his poor impulse control, that he did not sexually abuse his victims and murder Charla Wheat “deliberately.” He was, in other words, too warped to have acted responsibly. Alternatively, the jury could have balanced these mitigating factors against his self-induced drug abuse and intoxication, and the speculation embodied in Dr. Hickman’s connecting his behavioral problems to the crime, and found this crime to be “deliberate.”
Nelson’s jury was also presented with clear alternatives in regard to future dangerousness. It could believe Hickman’s testimony and conclude that Nelson was less morally culpable, given his mental illness, and that with proper treatment, Nelson would not present a future danger. Alternatively, the jury could follow the prosecution’s theory that Nelson was fully culpable for his actions and would continue to be dangerous even in prison.
Because this case is reviewed under AEDPA, we must, as the majority acknowledges, find the state courts’ resolution of the Penry issue not simply wrong, but unreasonable. Further, the “unreasonableness” must here stem from a conclusion that there is a “reasonable likelihood” — not a “mere possibility” — that the
Clearly, the evidence of a treatable mental condition and a deprived family background could be afforded decisive, if perhaps not “full,” mitigating effect under the pre-1991 sentencing scheme. The Court stated in Graham:
We see no reason to regard the circumstances of Graham’s family background and positive character traits in a different light [from Franklin]. Graham’s evidence of transient upbringing [while his mother spent long periods hospitalized for a “nervous condition”] more closely resembles Jurek’s evidence of age, employment history, and familial ties than it does Penry’s evidence of mental retardation and harsh physical abuse.
Graham,
The Court, of course, held in Graham that to require an additional jury instruction would be a “new rule” of constitutional law. We do not pretend that Nelson’s evidence of personality disorder and maternal rejection is on all fours with Jtvrek, Franklin, Graham, or Johnson. But the majority cannot pretend that such evidence — of a treatable mental condition and not “harsh physical abuse” — compels habe-as relief based on Penry I, Penry II, Ten-nard or Smith.
Reinforcing our conclusion is the inconsistency between the majority’s analysis of a treatable mental disorder today and our court’s analysis of an untreatable mental condition — schizophrenia—a year ago. See Bigby v. Dretke,
Nelson’s evidence had constitutionally adequate mitigating effect as to both of the special issues, and his jury was neither foreclosed from giving effect to the evidence by the Texas special issues, nor was it put in the position of rendering a false verdict, as in Penny I and Penny II. If the majority’s expansive reading of Penny compels the result reached today, it is to be hoped that the Supreme Court will so inform us definitively in the cases now pending before it. Because none of the Court’s precedents to date compels the “full effect” test or the result reached by the majority, it cannot be said that the state courts unreasonably applied federal law. I would deny habeas relief, and therefore, I respectfully dissent.
. In 1992, we reheard the Graham case en banc for the same reason. Graham v. Collins,
. See Cole v. Dretke,
. See, e.g., Hernandez v. Johnson,
. But cf. Johnson v. Texas,
. Graham,
. Penry v. Lynaugh,
. The fact that a federal habeas court would have reached a different conclusion than did the state court is insufficient to merit habeas relief pursuant to AEDPA. See Brown v. Payton,
. Skipper v. South Carolina,
. Hitchcock v. Dugger,
. The Court quoted Justice Brennan's dissent in Blystone, which acknowledged the ability of the Texas special issues to afford jury consideration of a defendant's moral culpability:
[The two special issues] require the jury to do more than find facts supporting a legislatively defined aggravating circumstance. Instead, by focusing on the deliberateness of the defendant's actions and his future dangerousness, the questions compel the jury to make a moral judgment about the severity of the crime and the defendant’s culpability. The Texas statute directs the imposition of the death penalty only after the jury has decided that the defendant’s actions were sufficiently egregious to warrant death.
Id. at 371,
. Notably, in both Graham and Johnson, spirited dissents capture the same debate over "full effect” and "some effect” that preoccupies us still; but the advocates of "full effect” lost. See, e.g., Graham,
. This reading of Penry I is entirely consistent with, and indeed anticipates, the Court's later decision in Penry v. Johnson,
. Boyde v. California,
. Payne v. Tennessee,
. Eddings v. Oklahoma,
. See Graham,
. See Franklin,
. The prosecution did not agree with Hickman's assessment of Nelson’s mental condition, as it did not have sufficient evidence to make a diagnosis. Its expert, Dr. Grigson, concluded only that Nelson would continue to pose a threat.
. The majority further relies upon a string of hypotheticals to create its Penry violation. If his jury believed that Nelson suffered from borderline personality disorder; if that jury believed that Nelson was untreatable or would not receive proper treatment in prison; and if that jury concluded that Nelson's mental illness had aggravating effect as to the special issues, only then is it possible that the jury might have felt compelled to answer "yes” as to the future dangerousness special issue, even if the jury wished a sentence other than death due to Nelson’s borderline condition. This attenuated theory of the jury deliberations extends Penry I far beyond its intended boundaries, without instructions from the Supreme Court.
. The holding of Graham, based on Teague, is that Penry I did not dictate constitutional relief based on the defendant's youthfulness. How, then, could the different evidence of a treatable mental disorder have become so indistinguishable from Penry as to render the state court's decision in this case unreasonable?
. Today's majority decision is also squarely contrary to the recent decision in Cole v. Dretke,
Lead Opinion
dissenting:
I enthusiastically join the superb dissenting opinions penned respectively by Chief Judge Jones and Judges Clement and Owen. I dissent separately, not to discuss the merits of this case but to highlight the embarrassing procedural tangle caused by the various actions of the Supreme Court and this court in Penny-related cases.
In its Penny cases, this court has been inconsistent in deciding whether to (1) finalize a case and issue the mandate, (2) grant en banc rehearing, or (3) hold a case indefinitely. Presumably the instant case (Nelson) was taken en banc to reconcile this circuit’s Penny jurisprudence — that is, to harmonize our numerous Penny-related cases with each other and with the opaque pronouncements of the Supreme Court.
An examination of the time line in this court’s Penny cases only adds to the confusion. The panel decision in Nelson was issued on August 12, 2003.
On remand in Nelson, this court issued its panel opinion on March 1, 2006, stating that “[t]his death penalty case is reconsidered pursuant to the Supreme Court’s instruction following its summary grant of certiorari and the vacating of our prior opinion based on Tennard ... .”
In Tennard, which is the most prominent recent Fifth Circuit Penry case, however, no judge held the mandate to await an en banc decision in Nelson. Tennard is the most significant of our current Penry cases because the Supreme Court vacated the panel opinion and, in an opinion by Justice O’Connor, rebuked this court for its approach to Penry questions.
Other Penry cases of note were active at this time. On November 15, 2004, the Supreme Court had vacated and remanded Cole v. Dretke,
Also pending is Coble v. Dretke,
Somewhat similarly situated to Coble is the Breiver case, in which the panel issued its initial opinion on May 31, 2005.
And then there is, finally, Garcia v. Quarterman,
The Supreme Court’s responses to the foregoing have been somewhat perplexing after the issuance of its latest (2004) opinion in Tennard. The most surprising development is that on October 13, 2006, the Court granted a petition for writ of certio-rari in Brewer.
There is no jurisdictional bar to Supreme Court review of non-final cases from the courts of appeals, but it is unusual.
The Supreme Court has scheduled a trifecta of Penry cases for argument on January 17, 2007. The same day it granted certiorari in Brewer, it also did so in Cole, with Cole and Brewer consolidated for argument.
As Chief Judge Jones wisely states in her dissent in Nelson, “[t]his court cannot ‘underrule’ the Supreme Court. Our duty is to harmonize its decisions as well as possible. We are always bound by the force of stare decisis.” So maybe, on the other hand, the current Court will determine that the various panels of this court, in the cases discussed above, have correctly applied the Court’s precedents, as my dissenting colleagues show in their able opinions.
In this regard, it is unfortunate that the en banc majority in Nelson has insisted on issuing its majority opinion at this time, in the wake of the grants of ceHiorari that I have noted. Instead, this court should have denied en banc rehearing in all the recent Penry cases {Nelson, Brewer, Cole, Coble, and Garcia), so as to give the Supreme Court the option of picking various ones of them for review. By our piecemeal and inconsistent approach, we have the incongruous situation of some cases held and others not, and of some with ceHiorari petitions and some not, and lastly of a case {Nelson) in which this court granted en banc review without even the benefit of a petition for rehearing, and now has insisted on issuing an en banc majority opinion in Nelson without the predictable guidance that will come from the Supreme Court’s review in the cases to be argued on January 17. The en banc majority’s rush to judgment is, in that sense, truly regrettable, and I respectfully dissent.
.In its most recent explication of its habeas corpus jurisprudence, the Court has reminded us that in interpreting "clearly established Federal law” under 28 U.S.C. § 2254(d)(1), we look only to the Court's holdings and not its dicta. Carey v. Musladin, No. 05-785,
. See Nelson v. Cockrell,
. Nelson v. Dretke,
. Nelson v. Dretke,
. Nelson v. Dretke,
. See Tennard,
. See Tennard v. Dretke,
. See Abdul-Kabir v. Dretke,
. Cole,
. Coble,
. See Brewer v. Dretke,
. See Brewer v. Quarterman, — U.S. —,
. Petition for Writ of Certiorari in No. 05-11287, Brewer v. Quarterman, at 2.
. Brewer,
. Robert L. Stern et al., Supreme Court Practice 75-78 (8th ed.2002) (citing 28 U.S.C. § 1254(1)).
. Petition for Writ of Certiorari, supra, at 13.
. See Abdul-Kabir v. Quarterman, - U.S. -,
. See Ex parte Smith,
. "Despite paying lipservice to the principles guiding issuance of a COA, ... the Fifth Circuit ... invoked its own restrictive gloss on Penry I ....” Tennard,
Dissenting Opinion
join dissenting from the majority opinion:
AEDPA requires us to defer to the state habeas court’s determination that the jury was not prevented from considering all the mitigating evidence within the special issues because that holding is neither contrary to nor an unreasonable application of Supreme Court precedent.
While this court has had many occasions to address Penry issues generally, the Supreme Court has spoken relatively very few times on the contentious issue presently before us: Jurek (youth, employment history, aid to family), Franklin (good behavior in prison), Penry I & II (mental retardation, child abuse), Graham (youth, transient upbringing, good character
Were I a California state judge, I would likely hold that Payton’s penalty-phase proceedings violated the Eighth Amendment .... [Tjhere might well have been a reasonable likelihood that [the] jury interpreted [the challenged jury instruction] in a way that prevented] it from considering constitutionally relevant mitigating evidence ....
Nonetheless ... [, f]or the reasons that the Court discusses, I cannot say that the California Supreme Court decision fails [AEDPA’s] deferential test.
Id. at 148-49,
While Payton does not address the Texas special issues, it nonetheless supports the proposition that, under AEDPA, federal courts sitting in habeas review of state convictions must defer to reasonable state court determinations regarding the constitutionality of jury instructions. Where, as here, there is no directly applicable Supreme Court precedent and the question is so close, a federal court cannot conclude that the state court unreasonably applied Supreme Court precedent. See Payton,
Our circuit has spent considerable time and effort trying to divine whether the jury was precluded from considering various mitigating evidence within the confines of the special issues. Such a close review of state court convictions is neither envisaged nor permissible under the standard of review imposed by AEDPA. Congress has limited the scope of our habeas review, and we must accede. Under that Con-gressionally-mandated deferential review, I simply fail to see how a majority of this court can hold unequivocally that the state habeas court not just has erred (certainly a debatable prospect) but has erred unreasonably so as to merit federal habeas relief.
. The district court quotes the following language from the state habeas court's decision: "The jury charge and the special issues allowed the jurors to give effect to all presented mitigating evidence in their answers to the special issues ....” D. Ct. Order at 37. A more precise statement, per Boyde v. California,
. Graham, as the majority opinion notes, merely held that precedent in 1984 did not dictate that the petitioner should be granted relief based on his potentially mitigating evidence.
. Only Penry II and Tennard are post-AEDPA federal habeas cases. The majority opinion's contention that the Court was "fully aware of the analytical constraints imposed by the deferential AEDPA standard of review,” Maj. Op. at 299, is a gentle way of obscuring that the Court did not decide whether the evidence fit within the special issues, since that question had been answered in Penry I. Rather, the Court granted habeas relief based on the Texas trial court's use of a nullification instruction. In Tennard, the Court similarly did not consider whether the mitigating evidence fit within the jury instructions. Rather, the Court struck down this circuit's "constitutional relevance” screening test and remanded for further proceedings.
. The challenged instructions included the "factor (k) instruction,” which is California’s version of a catch-all instruction. "[I]t directed jurors to consider any other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime.” Payton,
. The state court had held that Payton's mitigating evidence (sincere commitment to God, involvement in prison ministry, calming effect on other prisoners) of his post-crime behavior could be considered within the jury instructions. The Ninth Circuit granted habeas relief, believing that Supreme Court precedent upholding the factor (k) instruction applied only to pre-crime evidence. Payton,
. Though the majority opinion purports to apply AEDPA and not merely disagree with the state habeas court decision, see Maj. Op. at 303 & 309, the analysis and conclusion of the majority opinion clearly show otherwise. The question is not whether there is a reasonable likelihood that the jury was precluded from giving consideration and effect to Nelson's mitigating evidence, see Maj. Op. at 290, 303, 306, 307, 308, & 313; rather, the question is whether it was unreasonable for the state habeas court to hold that there was not a reasonable likelihood that the jury was precluded from giving consideration and effect to the mitigating evidence. This latter question sets a substantially higher bar to relief.
Dissenting Opinion
join dissenting:
The dissents of Chief Judge Jones and Judge Clement make salient points. I write to emphasize the standard of review that must be applied and that, given the state of the law when Nelson’s conviction and sentence became final in 1994, the Texas court’s application of United States Supreme Court precedent was not “objectively unreasonable.”
I
The Texas Court of Criminal Appeals affirmed Nelson’s sentence on direct review in 1993, rejecting his argument that the special issues submitted to the jury failed to permit adequate consideration of mitigating evidence.
Habeas review in federal courts of state court proceedings is governed by 28 U.S.C § 2254, and the inquiry before us today is whether the state proceedings “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.”
At the time the Texas Court of Criminal Appeals affirmed the judgment in Nelson’s direct appeal, the Supreme Court’s most recent pronouncements regarding the Texas special issues submitted in death penalty cases tried before 1991 were Graham v.
In Graham and Johnson, the Supreme Court discussed its decision in Penry I, a habeas proceeding in which Penry presented evidence indicating that he had a low IQ, had mild to moderate mental retardation, and had been beaten and received multiple head injuries at an early age.
The first special issue inquired if Penry acted “deliberately and with the reasonable expectation that the death of the deceased ... would result.”
The second special issue inquired “whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing
Subsequently, in Graham the Supreme Court emphasized that the jury’s answer to the second special issue in Penry’s case could not give effect to the mitigating aspects of his mental retardation and abuse because “[a]lthough Penry’s evidence of mental impairment and childhood abuse indeed had relevance to the ‘future dangerousness’ inquiry, its relevance was aggravating only.”
The Supreme Court’s decision a few months later in Johnson likewise draws a distinction between the type of evidence at issue in Penry I and certain other categories of mitigating evidence.
In Johnson, the Supreme Court expressly rejected the argument “that the forward-looking perspective of the future dangerousness inquiry did not allow the jury to take account of how petitioner’s
Perhaps most importantly, the Supreme Court held in Johnson that a state may structure consideration of mitigating evidence and that providing one vehicle through which to give effect to mitigating evidence satisfies constitutional requirements.
In answering the relevant question on direct review of a death sentence, which is “whether the Texas special issues allowed adequate consideration” of mitigating evidence,
II
Against this backdrop, we must determine whether the Texas court decided Nelson’s case “differently than [the Supreme] Court has on a set of materially indistinguishable facts.”
Unlike mental retardation or low intelligence, which are generally static conditions, the evidence regarding Nelson’s borderline personality disorder is not solely aggravating with regard to his future dangerousness. The majority opinion and Chief Judge Jones’s dissent describe the expert testimony in some detail, and I will not duplicate those discussions. The important point is that although Nelson’s expert witness conceded that those suffering from borderline personality disorder can be difficult to treat and there was no guarantee Nelson’s treatment would be successful, the expert opined that Nelson’s disorder was treatable with medication and psychotherapy over a period of two to five years. I agree with Judge Clement’s dissenting opinion that Nelson’s borderline personality disorder falls somewhere on a continuum between Penry’s mental retardation and Graham’s youth.
The established law in Johnson and Graham is that the attributes of youth place it in a different category than mental retardation: “The relevance of youth as a mitigating factor derives from the fact that the signature qualities of youth are transient; as individuals mature, the impetuousness and recklessness that may dominate in younger years can subside.”
The evidence also reflected that Nelson’s mother did not love him and shunned him. Nelson’s expert testified that his mother’s conduct likely contributed to or exacerbated Nelson’s borderline personality disorder. To the extent Nelson’s abusive treatment from his mother must be considered independently from his mental condition, it is not unreasonable to conclude that this evidence, as well as evidence regarding Nelson’s troubled relationships with his brother and women and his inability to have a relationship with his child born out of wedlock, is more similar to “Graham’s evidence of transient upbringing and otherwise nonviolent character”
[Hjolding that a defendant is entitled to special instructions whenever he can offer mitigating evidence that has some arguable relevance beyond the special issues ... would be to require in all cases that a fourth “special issue” be put to the jury: “ ‘Does any mitigating evidence before you, whether or not relevant to the above [three] questions, lead you to believe that the death penalty should not be imposed?’ ”52
The Court observed that “[t]he first casualty of a holding [that would require an additional issue whenever evidence had some relevance beyond the special issues] would be Jurek. The inevitable consequence of petitioner’s argument is that the Texas special issues system in almost every case would have to be supplemented by a further instruction.”
Additionally, during closing arguments, the prosecutor twice suggested that the jury might conclude that Nelson was not morally culpable for the murder because of his mother’s or others’ treatment of him and urged the jurors not to do so.
As to evidence of Nelson’s substance abuse, no one questions that the deliberateness issue provided an adequate vehicle.
Ill
The Supreme Court’s post-1994 decisions in Penry v. Johnson (Penry II),
In Penry II, Penry had been retried subsequent to Penry I, and the trial court submitted a third issue, in addition to the “deliberately” and “future dangerousness” issues.
In Tennard, the Supreme Court considered in some detail what constitutes mitigating evidence, explaining that the threshold was a low one in deciding if there was a mitigating aspect.
In Smith, the Supreme Court again quoted the passage from Justice O’Con-nor’s dissenting opinion in Johnson that said a sentencer must be allowed to give “ full effect to mitigating circumstances.’”
Rather, we held that the jury must be given an effective vehicle with which to weigh mitigating evidence so long as the defendant has met a “low threshold for relevance,” which is satisfied by “ ‘evidence which tends logically to prove or disprove some fact or circumstance which a fact-finder could reasonably deem to have mitigating value.’ ”72
The Court held in Smith that “the burden of proof on the State was tied by law to findings of deliberateness and future dangerousness that had little, if anything, to do with the mitigation evidence petitioner presented.”
Neither Tennard nor Smith purports to overrule the holding in Johnson that a state is only required to provide one avenue for giving effect to mitigating evidence, not multiple vehicles.
* * * * *
The Texas court was not objectively unreasonable in applying the Supreme Court’s established precedent to the facts presented. It was not objectively unreasonable to conclude that evidence of Nelson’s borderline personality disorder and the prospects for its treatment was less similar to mental retardation
. Williams v. Taylor,
. Williams,
.
.
.
.
.
. Nelson v. State,
.
. 28 U.S.C. § 2254(d)(1) (2000).
. Williams v. Taylor,
.
.
. Graham,
. Penry v. Lynaugh,
. Id. at 328,
. Id. at 310, 322-25,
. Id. at 322,
. Id.
. Id. (quoting Franklin v. Lynaugh,
. Id. at 323,
Without such a special instruction, a juror who believed that Penry's retardation and background diminished his moral culpability and made imposition of the death penalty unwarranted would be unable to give effect to that conclusion if the juror also believed that Penry committed the crime “deliberately.” Thus, we cannot be sure that the jury's answer to the first special issue reflected a “reasoned moral response” to Penry's mitigating evidence.
Id.
. Id.
. Id.
. Id.
. Id. at 324,
. Graham v. Collins,
. Id. at 475,
. Id. at 475-76,
. Johnson v. Texas,
. Id. at 367,
. Id. at 368,
. Id. at 372,
. Id. at 370,
. Id. at 369,
. Id.; see also Ayers v. Belmontes, - U.S. -,
. Johnson,
. Id. at 370-71,
. Id. at 370,
. Id. (quoting Saffle v. Parks,
. Id.
. Id. at 367,
. Id. (quoting Boyde v. California,
. Id. at 370,
. Williams v. Taylor,
. Id. at 409,
. Id. at 410,
. See Graham v. Collins,
. Johnson,
. Id. at 369,
. Graham,
. Penry v. Lynaugh,
. Johnson,
.Id. (referencing Jurek v. Texas,
. Id. (“In addition to overruling Jurek, accepting petitioner’s arguments would entail an alteration of the rule of Lockett [v. Ohio,
. The prosecutor argued, "You are going to hear some Billy, Billy, Billy, Billy, and before this is all said and done, this whole grizzly, horrible thing is going to be hung around the neck of his mother,” and, "We live — like I say, we are going to hang this, before it is over we are going to hang it around the neck of some school teacher or some football coach. We are going to hang this around the neck of everybody but him.”
. - U.S. -,
.
.
.
. Penry II,
. Id. at 798,
. Id.
. Id. at 799,
. Id. at 797,
. Id. (quoting Penry v. Lynaugh,
. Johnson,
. Tennard v. Dretke,
. Id. at 289,
. Smith v. Texas,
. Penry v. Johnson,
. Smith,
. Id. at 44,
. Id. at 48,
. Id. at 41.
.
. Id. at 288-89,
. See Johnson v. Texas,
. See id.
. See Penry v. Lynaugh,
. See Smith v. Texas,
. See Johnson,