Robison v. Johnson

DAVIS, M. GARZA and Before EMILIO STEWART, Judges. Circuit GARZA, Judge: M. EMILIO Circuit Larry was sentenced Keith Robison capital being convicted of murder after death petition Robison filed a counsel in Texas state court. violation of Sixth Amendment corpus keep relief in attorney psychia- for habeas federal district because his failed to report jury; court The district denied Robison’s trist’s from the Whether subsequent request Robison received ineffective and his Cer- assistance of (“COA”). attorney present counsel because Appealability tificate of failed eight separate thought process on evidence of requests during now a COA issues Robison’s (3) offense; deny the COA with commission of the Whether regard he raised below. We Penry1 Robison received ineffective regard assistance of to all but his attorney counsel because his advised Robison which but affirm the grant COA district (4) testify; not to Robison Whether received the merits. court’s dismissal on ineffective of assistance counsel and was de- I right nied his constitutional to counsel based attorney’s on his failure to follow Robison’s 1983, Larry In Robison Keith stood trial written to how instructions as to conduct his killing intentionally Bruce Gardner in the (5) defense; “special the Whether Texas is- committing robbery, course of in violation of determining sues” scheme for when to im- 19.03(a)(2). pur § Tex. Penal Robison Code pose a Eighth sentence of death violates the defense, insanity presenting sued an and Fourteenth Amendments to the U.S. schizophrenic, paranoid he was a but the applied Constitution as to Robison because guilty. of returned a verdict On direct special not allow issues did appeal, Appeals of Criminal Texas Court consider Robison’s mental illness as a miti- conviction, holding reversed Robison’s (6) claim”); (“Penry gating factor Whether by the trial court abused its discretion had newly Robison’s claim of discovered evidence improperly limiting defense counsel’s voir (7) relief; ground states a for federal habeas potential questioning regarding dire bias to Whether of Criminal Texas Code Procedure defense, in insanity wards the violation of 1(e), § ju- article 46.03 which mandates that I, § Article 10 of the Texas Constitution. consequences rors not be informed of a (Tex. Texas, 720 Robinson v. S.W.2d 808 by guilty verdict of not reason of insanity, Crim.App.1986). deprived process; Robison of'his to due 1987, again In Robison stood trial on the and Whether the district court erred charge, same as before on a relying defense denying evidentiary Robison’s motion for an of insanity. jury returned a The verdict of hearing. guilty then, during sentencing phase and followed, affirmatively may only answered to the “A issue ... [COA] if the two forth in applicant issues set article 37.071 has made a substantial of the Texas Code Criminal the denial of right.” Procedure. a constitutional 28 2253(c)(2). accordingly The trial court sentenced Specifically, appli Robi- U.S.C. injection. son by to death lethal On cant direct must demonstrate that the issue on appeal, Appeals of Criminal the Texas Court which he is among seeks COA “debatable jurists affirmed conviction Robison’s and sentence. Fuller v. reason.” - (Tex.Crim. Texas, Cir.), denied, Robison v. S.W.2d F.3d cert. (en banc). App.1994) -, After appli Robison’s U.S. 118 S.Ct. 139 L.Ed.2d 312 (1997). corpus cation for relief in determining habeas grant court whether to denied, COA, filed the instant ... “[w]e habeas resolve doubts favor of the corpus petition petitioner, court. may properly The district district and we consider the severity denied without penalty making of the this deter (citations omitted). evidentiary hearing and later denied mination.” his re With quest mind, for COA each issue on raised here. these standards in we consider in turn by each of the issues raised Robison.2

II A Robison seeks a COA from this court on following each of the issues: attorney Whether Robison contends that his trial ineffective received assistance of rendered assistance by ineffective of counsel issues, Penry Lynaugh, 1. addressing briefly Before these dis- (1989). pose 106 L.Ed.2d 256 of Robison's contention that the Antiterror- materials, including Price’s report psychiatrist, Dr. Buck- viewed of a giving Price, holtz, report. Dr. The testifying expert, Buckholtz’s State subse- report thereby to be discovered allowing quently Price cross-examined about in-cross-examina then used report during argu- and mentioned it hours with Ro- spending After several tion. not otherwise see ment. did visits, Dr. Buck- over course two bison report. opinion Robison was rendered an holtz (5) While, request, at their re- the murders at the time he committed sane testimony portions Price’s ceived detailed, report sum prepared a written deliberations, during cross-examination marizing his conversations with request portions it received at its also opinion. disclosing his ultimate Robison con cross-examination of defense’s performance was that his counsel’s de tends psychiatrist Dr. Griffith. the State’s damaging allowed re ficient because he (6) provided report to Counsel Buckholtz’s by and port to be discovered used order Price have Price in should jury. The against him in front of state him all in before available information findings following court made the of habeas making his of and [Robison] evaluation fact related to this issue: any to deflect criticism from the State (1) 1983, At his trial in was [Robison] first on cross-examination. by represented J.R. Molina and (7) prosecutor at second [Robison]’s The preparation In for Charles Roach. trial, Greg Pipes, jail reviews the and just first trial and seven [Robison]’s penitentiary of an accused in a records crimes, counsel months after em- major County trial. Tarrant Jail rec- M.D., Buckholtz, ployed to con- C.D. reflect that Dr. Buckholtz visited ords [Robison]. duct mental evaluation of 17,1983. May on [Robison] (2) Dr. found that was [Robison] Buckholtz (8) totality [Ro- Price testified that the of during not insane the commission bisonj’s history was critical medical the crimes and elected not to counsel evaluating his state. mental testimony present at the 1983 trial. his (9) Notwithstanding the trial ex- (3) court’s represented by different [Robison] press raising is- consent to counsel, Sherry [Robison] Bays David Hill counsel, (now no independently of his sues presiding Judge County Crimi- . during assert [Robison] time trial did nal Court Number One of Tarrant any privilege prevent disclosure nearly to County), at his trial five second report, Buckholtz’s nor did he voice years of the after commission More- any objection the trial court. preparation for to [Robison]’s crimes. mother, Robison, over, trial, in a submitted [Robison] his Lois letter second Price, Ph.D., pro- to final in this writ Randall evalu- with his affidavit retained to gave instructions ceeding, ate written [Robison]. be .(4) [Robisonjs counsel desire to materials, expressing his Along other with de- forthright with the and he report gave new Buckholtz’s to counsel trial, matters of strate- ferred to counsel on Price. Price testified at the 1987 cross-examination, on the State re- gy- ("AEDPA”) particular peti- Penalty federal habeas Act defendant filed and Effective Death ism request sup- question. Following Following the tion our apply case. Su does not to his briefing, Murphy, plemental in fa- we resolved issue preme v. Court’s decision Lindh state, holding applies to briefing vor that AEDPA requested supplemental on the issue of petitions- court applied habeas filed in federal district whether AEDPA to Robison's habeas v. Murphy, -U.S.-, United States after AEDPA’seffective date. See Carter, See 117 claim. Lindh (5th Cir.1997); 2059, (1997) (holding F.3d 262 United L.Ed.2d 481 117 138 DeLario, Cir.1997). applies only States v. to cases filed after effec AEDPA 24, 1996). peti- argues Robison filed this federal habeas April Because tive date of Texas on "filing tion in the Northern to Lindh should be date” referred Decem- District.of 12, 1996, after ef- ber several interpreted state, months AEDPA’s to the date of conviction. mean 1996, hand, apply April we will appro fective date of argues other to habeas claim. filing AEDPAstandards priate date on which the date should challenge recog findings Robison does not these the state on cross-examination.” We fact, them presume report and we to be correct. nize that certain Buckholtz’s contained 2254(e). The state 28 U.S.C. habeas damaging opinion contrary See and an passages concluded as a matter of law that However, position. given defense’s challenged presump- actions are “[c]ounsel’s factual con findings, habeas court’s tively scope within of sound trial strate- clude that Robison has failed to overcome the [Robisonjs gy” “[g]iven and that instructions strong presumption that his counsel’s deci trial, counsel and his silence counsel’s provide report sion to Buckholtz’s Price providing report Buckholtz’s action strategy. trial constituted sound See Strick justifiable strategy.” Price was as sound trial land, U.S. at S.Ct. at 2065. We therefore made a

To hold that has not succeed on an ineffective assistance of showing of substantial the denial of a consti must show that counsel regard tutional to this performance issue. constitutionally counsel’s deficient his counsel’s ineffectiveness prejudice. in actual resulted See Strickland B 668, 687, Washington, Robison next contends that his counsel was (1984). satisfy To L.Ed.2d failing present ineffective evidence of test, prong the first Strickland thought process guilt-innocence his the petitioner rep must show that his “counsel’s stage of introducing trial either autob- his objective resentation fell below standard iography, “The Making entitled of a Schizo- Moreover, petitioner of reasonableness.” Id. or, phrenic,” assuming the autobiography strong must presumption “overcome the that inadmissible, developing presenting was counsel’s conduct the range falls within wide thought process through that expert, his Dr. assistance,” professional of reasonable autobiography Price. The is 31- Robison’s Cain, v. Williams 125 F.3d page up thoughts leading account of his to Cir.1997) (internal quotations and citation time of including the the The murders. omitted), presumption adequacy and this of state habeas court made the following find- “[ejvery making includes effort ... to elimi ings regard of fact autobiography: to the distorting hindsight” nate the effects punishment ... At stage the “that, circumstances,

to assume the under trial, in to evade order cross-examina- challenged ‘might the action be considered tion, testify, elected not [Robison] to trial strategy.’” Bridge sound v. Lynaugh, but he to desired introduce the docu- (5th Cir.1988) (quoting ment into evidence. Strickland, 466 U.S. at 104 S.Ct. at 2065). prong, prejudice, The prose- second “re After a conference with the quires showing cution, that counsel’s errors de defense counsel [Ro- advised prived the a fair defendant of trial.” the See State not ac- bison] would Strickland, 687, 104 quiesce S.Ct. at 2064. the admission of document unless took the [Robison] argues per Robison that his counsel’s requested stand. then [Robison] constitutionally formance was defective be document introduced into essentially cause he handed over this confi review, purposes the record dential, damaging report to the state. The permitted. which trial court ... disagrees, state contending that counsel ex The court autobiography concluded ercised strategy sound trial in providing and, as inadmissible alterna- report Price with Buckholtz’s to aid Price in tively, that counsel could have omitted protect his evaluation of Robison and to him autobiography strategy. a matter as of trial on cross-examination. position supported by state’s is Applying two-prong Strickland state findings habeas court’s of fact that test to we Ro- first address counsel’s bison’s report counsel autobiography showed the Price to failure to into introduce ensure that “all available Price had informa- evidence. The determined tion” and to “deflecting inadmissible, aid in criticism the autobiography and we appears allege question that determination. See Es had the known do not 67-68, McGuire, “thoughts” during 112 more about his mur- telle (1991) (“[I]t ders, 475, 480, they might have been more 116 L.Ed.2d 385 convinced “crazy.” Having habeas court that he was province is not the federal reviewed however, autobiography, to reexamine state court determinations conclude lawyers may essentially disagree This fore reasonable well about questions.”). state-law under that whether the would in fact have reacted closes claim Strickland deficiently failing as performed Robison theorizes or would instead have his counsel Murray opposite intooduee inadmissible evidence. reached conclusion. Cf. (5th Cir.1984) 279, 283 Maggio, argument Because Robison’s fails the first (“Counsel required engage in the is Strickland, prong of has failed to motions.”). filing of futile make a substantial that he was de- prived constitutionally effective counsel in has We also conclude this instance. show that his counsel was deficient failed to developing thought process through C First, Dr. Price. note that to the extent argues that trial counsel rendered relevant, did, in that it was Robison’s counsel by advising ineffective assistance him not to fact, testimony regarding elicit how Robi testify guilt-innocence at the stage of “thought process” supported diagno son’s response, trial. the state contends that paranoid schizophrenia. sis of Dr. Price ex testify counsel’s advice not to was well within plained to the that Robison suffered professional the bounds of reasonable assis- sys “underlying from an fixed delusional tance. evaluate this claim of ineffective tem,” which manifested itself beliefs such two-prong assistance under the standard following: as the Strickland, keeping mind that “the deci- ... He believed that after he killed the put sion a on whether to Defendant the stand person, that clock in first the —it was ‘judgment easily is a call’which should not bathroom, believe, clock, digital in the I a hindsight.” with condemned the benefit of flipped it it he said that over to where was Garcia, 762 F.2d United States zeros, acting and then it started like it was (5th Cir.1985). clock, stop thought and he that was a message supposed he to start that was that state habeas court found Robi- trying to free other souls. “strongly son’s counsel [Robison] advised against testifying because of the risk that he Robison’s counsel went on to elicit from Dr. might adversely expose himself before the testimony why particular Price as to this jury on cross-examination.” The court also episode type “underly- demonstrated the following findings: made the ing system” typical para- fixed delusional (16) deny Counsel did not [Robison] schizophrenics: noid opportunity testify guilt/in- to at the “Well, but, you I ... said to [Robison] stage of trial. vol- [Robison] nocence said, know clocks don’t do that.” And he untarily in gave up right testify his to “Well, really I this one did that.” And cross-examination_ order to avoid said, “Well, you don’t think that was some- (29) thing you thought during it he realized trial that [Robison] did?” And said, “No, prevent that’s what it counsel not him from did.” could testifying So, and has failed to [Robison] underlying you there was still —if complain any inability testify about to enough questions spent enough asked and thus, previous years; in the nine time, underlying sympto- there was still an not deny [Robison] counsel did mology picture para- or a there chronic right testify. to schizophrenia. noid The state habeas court concluded that Furthermore, light of the contents of strongly “[p]roperly, counsel advised [Robi- autobiography, we cannot conclude that against testifying.” son] employed strategy counsel unsound trial findings having extensively quote challenges not Dr. Price Robison supported by Specifically, or otherwise refer to the document. Robison as not the record. response, maintains on the record counsel. the discussion argues that he procedurally claims are barred these testify place at the took his desire about event, and, any meritless. that it was not stage of trial and punishment over- stage that counsel punishment until the supple- claim in a presented him persuaded not to testi- will and bore his habeas petition habeas to the state mental that the soundness fy. contends Relying on Texas Code of Criminal court. strategy questionable was con- trial 4(b) counsel’s (f), §§ article 11.071 Procedure nature of the defense —insani- sidering the supplemen- state court found testify. Although he ty his desire to petition untimely filed and that Robi- tal —and partially one good concedes decision cause to failed to demonstrate son had ulti- argues that the decision strategy, delay. review of Robison’s excuse On petition, the accused and not mately should rest with habeas the district federal procedurally this claim was barred. lawyer. held that provide the district court dismisses objections do not When These procedural, nonconstitutional convincing evidence neces type of clear and two-step process. employ a COA grounds, we sary presumed correctness to rebut (5th 10, 11 Murphy v. See finding court’s factual habeas Cir.1997). First, if the we must determine voluntarily relinquished applicant a credible has made testify guilt-innocence stage.3 We procedurally barred. id. his claim is not See Robison has not therefore conclude that requirement, applicant If the meets performed trial counsel defi shown that his then determine if he “has ‘made substantial advising persuading Robison ciently in of a constitutional showing of the denial Moreover, testify. ben even with the ” underlying claim. right’ respect to the hindsight, find that counsel’s efit of 2253(c)(2)). (quoting 28 U.S.C. against Robison’s strong recommendation trial strat testifying represented reasonable argues that because the The state Estelle, egy. See Hollenbeck unambiguously based its denial of state court Cir.1982) (5th (holding that it was not procedural and Robi relief on a state default strategy trial for counsel unreasonable prejudice to show cause or son is unable testify not to as to self- advise defendant default, correctly the district court held “might do more defense where defendant procedurally that this claim was barred. See explain good by attempting harm than Johnson, 138 F.3d Meanes v. self-defense”). were how six shots fired Cir.1998) (“It ha is well settled that federal reasons, that Robison has For these we hold procedurally barred beas review of a claim is showing failed to make substantial the claim if the last state court to consider right to denial of his constitutional effective expressly unambiguously based its denial and assistance of counsel. default.”); id. procedural of relief on state (“Where explicitly at 1011 a state court has D bar, procedural prisoner a state relied aon normally may contends that his trial counsel’s habeas relief Robison not obtain federal instructions, explicit showing his as of cause for the default and failure to follow absent a counsel, Robison, however, prejudice.”). con- main detailed in a letter he wrote to actual prejudice.4 constitutionally can show cause and stituted ineffective assistance tains that he cause, must In to show Robison dem- Amendment to order violated Sixth answered, specifically during punish- When counsel 3. The "Yes.” trial record reveals that phase, testify, questioned to Ro- ment him whether he wanted Robison’s counsel asked Robison exchange, autobiogra- testify. During about desire to to have his bison said that he wanted acknowledged had phy Robison that counsel warned did not want to into evidence but introduced prosecutor try him "would to make him re- subjected cross-examination. The state angry jury.” however, real bad in front of the and look request,' Robison asked so fused spo- that counsel had Robison further admitted autobiography be entered into the record many testifying review, ken to times and had him about purposes appellate which the court strongly against consistently and recommended allowed. anticipated, it intense cross-exam- because of the proce- him, does not contend that the state "Taking ination. that all of Counsel then asked strictly consideration, not been or beep you dural rule in this case has regularly applied by off the into I can’t stand, you the state. See Stokes witness know that?” objective pectation that some factor external onstrate the death of the de- prevented raising him from to his defense ceased or another would result? Querra, claim. United States v. See probability Is there a that the Defen- (5th Cir.1996). 989, F.3d One such ob dant, Robison, Larry Keith would com- jective showing factor is “a that the factual mit criminal acts of violence that would claim not legal or basis for the reason continuing constitute a threat to soci- ably prior available to counsel at the occa ety? sion.” Id. The trial gave court also the following in- claims have demonstrated struction: by presenting cause evidence that his current You are further instructed that in deter- prevented obtaining counsel was access mining Issues, Special you each of these to the trial file that Robison’s letter included may take into consideration all of the evi- until to his trial counsel after the state limita you dence submitted to full trial of period assuming tions had run. Even ar case, is, all of the evidence sub- true, guendo that Robison’s excuse is howev you part mitted to in the first of this case er, sufficiently Robison has not demonstrated you upon wherein were called procedural determine cause for the default. Robison obviously Defendant, aware of the letter guilt and of the or innocence of the given instructions had his counsel therein. evidence, any, and all of the if admitted instructions, It was Robison’s however com you part before in the second of the trial municated, itself, and not the letter that form you upon wherein are called to determine Guerra, the “factual basis of the claim.” See Special the answers to the hereby Issues 94 F.3d at 993. Robison thus knew of the you. submitted to factual basis the claim before his current unanimous, Upon receiving a affirmative re- discovery counsel’s of the letter. The fact sponse questions, to each of the two may pro that Robison have been unable judge assessed a sentence death. duce the best evidence of this communication Penry, until later does constitute cause for the Court set aside delay in bringing sentence, this claim before the court. Penry’s capital holding that al thus conclude Robison has failed to though Penry’s evidence of mental retarda make credible that his claim is not tion placed and childhood abuse was before proeedurally barred. sentencing, the sentencer no had giving reliable mitigating means of effect to E Penry, that evidence. Relying Penry Lynaugh, “Penry’s, application at 2952. has since (1989), 106 L.Ed.2d 256 been limited to that narrow class of situa Robison contends that his sentence of death petitioner’s mitigating tions which the evi Eighth was rendered in violation of the placed beyond jury’s dence was effective Amendments, him, applied Fourteenth as reach.” Lucas v. provided because the issues in Texas (5th Cir.1998), petition filed, cert. for of Code Criminal Procedure article 37.071 (U.S. (No. 1998) 97-9463); see, e.g., Jun. provide adequate did not an vehicle for the Texas, 350, 369-70, Johnson 509 U.S. mitigat- to take into account Robison’s (1993) 2658, 2670, S.Ct. 125 L.Ed.2d 290 ing evidence of mental illness. Pursuant (holding special permit that the Texas issues 37.071, article the trial court asked the jurors mitigating ted to consider of evidence following statutorily spe- the two mandated youth evaluating petitioner’s future dan sentencing: cial issues at Collins, gerousness); Graham Defendant, Was the conduct of the 461, 475-76, 892, 902, 113 S.Ct. 122 L.Ed.2d Robison, Larry Keith that caused the Gardner, (holding special that Texas death Brace committed de- liberately permitted jurors mitigat- and with the reasonable ex- issues to consider Anderson, 1997), (5th “petitioner 859-60 Cir. bears the burden of that the - denied, -, sLrictly regularly cert. U.S. state did not or follow [the] (1998) (explaining procedural L.Ed.2d 147 that a state that to establish bar around the time of his direct procedural “adequate,” appeal”). bar is not typical per- behavior of a describing the youth, family background, and

ing evidence schizophrenia. The court suffering the evi son traits because character positive and further noted that evidence at trial indicated to the sec mitigating, relevance “had dence of Robison’s relatives had been likely future that several concerning his special issue ond schizophrenics that there by diagnosed as and question presented dangerousness”). therefore, may hereditary link to the disease. The claim,is, “whether the Robison’s indicated that much evidence of presented was with court also mitigating [he] history drug and alcohol abuse either Robison’s reach of the under in the effective admitted, of Robi- including accounts considered the was interrogatories Scott, Id.; hospitalization drug for use. Price tes- Lackey v. son’s also jury.” see Cir.1994) (“A drugs, that such as LSD and state’s refusal to tified certain person amphetamines, tend to cause a does not amount instructions give additional schizophrenic, symptoms appear there is a ‘rea exhibit that error unless to constitutional Griffith, witness, Dr. jury applied the and the state’s testified sonable likelihood illness, prevents faking that was mental had way in a that challenged instruction use, drug that Ro- constitutionally engaged extensive relevant the consideration ”) drug- behavior was attributable to (quoting 509 bison’s mitigating evidence.’ (1993)). 367, 113 psychosis, which exhibits similar at 2669 induced symptoms schizophrenia. Finally, evi- ap- this claim his direct Robison raised schizophrenia that dence at trial indicated Appeals, of Criminal peal to the Texas Court episodic manifest at was and could become here, jurors that “the claiming, as he does go then into remission at certain times and mitigating ef- not able to consider were that Both Price and Griffith testified others. during or defect fect of his mental disease schizophrenia recounting After is treatable. trial.”5 Robi- punishment phase of the evidence, concluded that all of this the court son, with our at 486. Consistent 888 S.W.2d ’ issue,” ‘Penry it “insufficient to was raise law, that to success- case the court explained explaining “assuming arguendo that even Penry Robison had to fully raise a schizophrenic, that was there was [Robison] mitigating evi- presented show he had mental [Robison’s] no evidence that disease reach of “beyond that was the effective dence culpability.” personal moral decrease[d] setting forth Id. at 487. the senteneer.” Id. at 488-89. The court therefore overruled showing, requirements making such- point special error that the is- it is not the labels emphasized the court adequate provide sues failed to mecha- society mitigating, are but imposed by give effect nism for the consider evidence, present- “specifics rather the mitigating evidence. trial, how that evidence affected ed culpability personal of the defen- moral issue, respect to the first With distinguished Penry in Id. The court dant.” Penry explained in that a Court that “it not that respect, explaining juror rational could have concluded based ‘mentally abused [Penry] was retarded’ and confession, Penry Penry’s acted deliber- child,” rather the fact that “[a] as a but However, ately killing his victim. because Penry psychiatrist was unable testified retarded, Penry mentally less and “thus mistakes.... It is this to learn from his impul- than a normal adult to control his able testimony, label of ‘mental retar- and not the consequences of his ses or to evaluate the dation,’ society mitigating.” believes is conduct, juror ... that same could also con- Id. at 488. Penry morally culpable clude that was less excuse, than who have no such defendants in detail the evidence The court reviewed ‘deliberately’ who acted as that term is but presented at of mental illness that Robison 322-23, 109 commonly understood.” expert trial. The noted that Robison’s (internal Price, quotations and cita- witness, S.Ct. at 2949 Dr. on behalf of Ro- testified omitted). defense, tions The Court therefore conclud- insanity speaking bison about his jury that it not be sure that the extensively schizophrenia nature of ed could about the procedural Penry posed reached the Supreme after Robi- no bar instead Court decided appeal. Penry son's conviction but before his direct of Robison’s claim. merits Thus, Appeals the inl- Texas Court of Criminal give Penry’s mitigating evi- corpus only able to effect for writ of habeas if the adjudication state court of the claim “result issue, special answering dence in the first to, contrary ed in a decision that was or juror reasoning that a could believe that of, involved an application unreasonable Penry’s mental retardation diminished his law, clearly established Federal as deter culpability moral but also believe that he mined An applica Court.” 323, deliberately. committed the crime Id. at tion only of federal law is “unreasonable” if it Turning 109 S.Ct. at 2949. to the second clearly is “so incorrect that it would not be issue, special Court concluded Pen- . among jurists.” debatable reasonable Nobles ry’s of mental retardation and resul- Cir.1997), inability to learn tant from his mistakes was - denied, U.S.-, cert. only aggravating relevant as an factor be- (1998) (internal quotations L.Ed.2d suggested Penry omitted). cause it would be a words, and citation In other “an society application of law to facts continuing threat and therefore is unreasonable only when it can be said that reasonable compel jury “yes” would to answer to the jurists considering question would be of special According second issue. to the one view that ruling state court Court, Penry’s mental retardation and histo- (internal incorrect.” Id. at 416 quotations ry “two-edged of abuse was thus a sword: it omitted). and citation may diminish his blameworthiness for his Although question whether Robison probabili- crime even as it indicates there is a mitigating could show that his evidence was ty dangerous in he will be the future.” Id. at beyond jury the effective reach of the Therefore, 109 S.Ct. at 2949. the Court Lucas, respect issue, special to the first see special concluded that the second issue also (holding 132 F.3d at 1082 that the senteneer provide jury give did not a vehicle for the effectively could mitigating consider the as- mitigating Penry’s effect to mental retarda- pects of Lucas’s evidence of mental illness— tion. expert including testimony that Lucas was psychotic schizophrenia— and suffered from reasoning Robison contends that issue), special under the first we need not Penry applies equally argues to him. He decide that issue here we can affirm because special that the first issue did not allow the respect the district court’s decision with jury give mitigating effect to his mental Scott, special the second issue. See Davis v. Specifically, illness. he claims that not (5th Cir.1995) (concluding knowing wrong one’s conduct is not be- it “need not consider whether the sec- ing able to conform one’s conduct to the special another, provided separate, ond issue requirements of the law do not disable one adequate jury means” for the to consider Thus, continues, acting deliberately. he mitigating Davis’s evidence because it had already could have concluded he acted determined had an adequate through means the first is- deliberately but at the same time concluded sue). issue, In relation to the second that he could not conform his conduct to the distinguishes Penry’s mental retarda- issue, law. respect With to the second illness, arguing tion from Robison’s mental despite contends that the treatable nature of schizophre- is former constant while schizophrenia, could have nonethe- capable nia going is treatable and into less found him to dangerous, be more not Furthermore, points remission. treatability less so because give does not out that argued during defense counsel itself lasting assurance of a cure. punishment phase precisely reasons, those should answer “no” Given the similarities between Robi question: proba- to the second there was no son’s evidence of mental illness and the evi bility dangerousness of future Robi- because Penry, dence discussed we find that Robi improved, according son had to his own was— son has made a “substantial remission, expert in a con- would be —in issue, right” denial of a constitutional on this life, trolled environment for and therefore accordingly grant and we on it. COA 28 could continue to be in remission. Robison 2253(c)(2). U.S.C. We therefore review responds by arguing that the treatable na- this claim under the standard set forth ture his mental illness does assure 2254(d): and, therefore, § grant U.S.C. we will long-lasting Robison’s cure Pemy a not raise a issue was not “decision Robison to be have found could nonetheless to, contrary an unrea- that was or involved dangerous, not less. more of, clearly application established sonable pre on the evidence Based law, as Federal determined trial, at conclude sented 2254(d). according- 28 U.S.C. Court.” evi mitigating effect to Robison’s give could ly court’s dismissal of this affirm the district answering the sec mental illness dence claim. issue, Robison’s special which concerned ond Davis, 51 F.3d at dangerousness. See future F Penry claim not (explaining that “a does newly he has discovered Robison claims constitutionally relevant evidence arise when supporting insanity, his claim of evidence way mitigating effect in some given ‘can be contends that his execution without exam- issues’”) special (quoting the Texas under be so ination of this new evidence would Collins, Motley fundamentally pro- as to violate unfair due Cir.1994)) Lucas, original). In (emphasis in Amendment. Ro- cess under the Fourteenth “psychotic experts testified that Lucas was alleges no other constitutional violation bison Lucas, schizophrenia.” and suffered conjunction newly with his claim of discov- testimony also at 1082. The trial this claim in both ered evidence. He raised “responded well to anti- that Lucas indicated petitions, federal habeas his state and psychotic drugs like Thorazine and that rejected the claim without an both courts be treated in a con particular illness could evidentiary hearing. Distinguishing environment.” trolled alleged new evidence is that af- prospect of medi Penry, “[t]his we held ter his conviction was affirmed direct placed the of his men cal treatment appeal, diagnosed his half-sister was as man- within ‘the tal illness and abusive childhood Price, Dr. depressive ic and schizoaffective. poten as a reach of the sentencer’ effective who testified on Robison’s behalf the sec- respect with to the sec mitigating tial factor trial, concluded in an affidavit attached ond “the could have con ond issue” because to Robison’s state habeas whether, setting, in an institutional sidered very heavy new information would “lend posed as a future probability that Lucas support diagnosis.” weight of [his] danger society great was not so as to Duckers, addition, expert subpoenaed Dr. Id.; of the death sentence.” imposition merit testify ultimately trial but not at Robison’s Davis, (concluding 51 F.3d at 464 see also psy- called he attributed Robison’s because give mitigating could effect drug schizophre- chosis more to use than to special under the second Davis’s evidence nia, swears in an affidavit that Robison’s new the evidence did not demon issue because change professional [his] evidence “would was unable to learn from his strate “that he psycho- opinion of the cause of Mr. Robison’s “he re mistakes” but did demonstrate that him attribute to] [the sis and cause [would sponded positively to a structured environ psychosis] schizophrenia drug than more to ment”). applies equal That distinction use.” ex

weight to Robison’s case: both Robison’s pert expert the state’s testified that that “in the The state habeas found treatable, schizophrenia is and Robison’s ex jury’s of [Robison’s] context of the awareness pert currently in a testified that he was family’s history own medical and his medical remission, being which he a attributed history, the fact that half-sister [Robison’s] prison life. problem result of the structure of See has succumbed to a mental health Graham, 113 S.Ct. at 902 years after the commission of the crimes is (holding import support that “Graham’s evidence—unlike little or no and does support Penry’s mitigating relevance to the sec claim of actual innocence.” In —had concerning likely finding, future note that at trial Robison ond issue “quite presented testimony regarding his own men- dangerousness” because his evidence history, diagnoses readily supported negative an tal health which included could have swer”) schizophrenia, as well as evidence (emphasis original). We thus hold family diag- were people four in Robison’s the conclusion of the Texas Court great- schizophrenia (including Criminal Appeals did nosed with that Robison’s evidence uncles). addition, grandfather and two G possible genetic testified about the Dr. Price contends Texas Code of schizophrenia. 1(e) of basis Criminal Procedure article vio- 46.03 process prohibits lates due because it the reject newly Robison’s claim of We informing accused from the of the conse- Contrary to Robison’s discovered evidence. quences guilty by of a insanity reason of often-quoted the “actual inno reliance on (NGI) verdict.8 Robison claims that mem- Supreme in case cence” dicta the Court may impres- bers of a have venire erroneous Collins, 390, 113 Herrera v. consequences sions about the of a ver- such 853, 122 (1993),6 in L.Ed.2d 203 we have held dict that should be corrected in order merely fairness, spe- circuit that “the existence ensure fundamental and more trial, cifically, particular that in his the state newly evidence relevant to the discovered played impressions by on these erroneous guilt prisoner ground of a is not a for state implying that Robison would be released into corpus,” habeas and “the relief on federal society after an NGI verdict.9 Court’s Herrera opinion does not Addressing appeal, this issue on direct Lu principle.”7 alter this entrenched habeas Appeals Texas Court of Criminal held that v. cas erroneously the state did not indicate that a Cir.1998). Moreover, assuming ap even verdict of NGI would result plication of the “actual innocence” dicta State, society.10 release into (and assuming additionally Herrera (Tex.Crim.App.1994). S.W.2d 475-76 proof insanity deserves the same treat Distinguishing by the remarks made innocence”), ment as claims of “actual Robi explicit state in this case from an declaration yet son’s demonstration here that another go following that a will defendant free relative suffers from a related but not identi verdict, NGI the court did not find fault with cal mental disorder does not rise to the stan “confronting] premise for the state “truly persuasive.” dard of Robison has defense, insanity a [which that] is defen- failed to make a substantial of the is criminal responsibility dant excused respect of a denial constitutional jurors’ responsi- for his actions and that the Id. at 476. point.”11 bilities end at this issue. following passage Specifically, argues 6. in Herr- 9. Robison refers to following era: made the and other similar statements: assume, may argument for the sake of says person a at "[0]ur law if is insane case, capital truly deciding this that in a case a offense, exact time of the then he cannot persuasive demonstration of "actual inno- responsible held for his actions.” cence” made after trial would render the exe- verdict, If the return an NGI "that would unconstitutional, of a cution defendant be the end of the trial. He would be found not warrant federal habeas relief if there were no insanity, you’d guilty by reason of be dis- open process avenue a claim. such [your job].” charged and return to at S.Ct. at 869. says they defense] “But the law that if [the case, 7. We also note that in Robison’s "a further prove you by preponderance it to a construing effecting a bar to Herrera as such evidence, having excuses them for then law expansion substantial language ignored of federal law is the habeas insanity.” met that burden of petitioner that federal says ... that if meets our "Our law someone only be warranted 'if there habeas relief would insanity, they legal and if are definition open process were no state avenue such definition, legal our that their insane under " Lucas, (quoting claim.' conduct is excused under the law." Herrera, 869). 506 U.S. at says temporary "Our law we don't have insani- case, Following Supreme Court’s Herrera ty, person get himself can’t off or relieve began recognizing Texas "actual innocence" responsibility proves he for his acts unless ex claims. See State rel. Holmes Court of legally himself insane." Appeals, (Tex.Crim.App.1994) 885 S.W.2d 389 entertaining (announcing begin it would Appeals rejected also 10. The Court of Criminal postconviction applications for the writ of habeas statute, challenge to reason- Robison's facial corpus alleging indepen- actual relief). as an innocence policy judgment ing that the statute reflects the ground dent State, legislature. of the 473, Robison v. 888 S.W.2d (Tex.Crim.App.1994). 475-76 ap- challenges only 8. Robison this statute as it case; plies particular circumstances of his Specifically declining to address the situation explicitly application states for COA challenge "globally.” that defendant in which the state does indicate that he does not the statute develop applicant not If the has failed to the that Robison has conclude in factúal basis of a claim State court showing of the of a denial made a substantial proceedings, the court shall not hold an right regard to this issue. constitutional evidentiary hearing on the claim unless the Appeals Court Criminal As the Texas applicant shows that— found, say that the defen did not (A) the claim relies on— a if the rendered go would free dant (i) law, a new rule of constitutional made only instead said that the verdict of NGI and retroactive to cases on collateral re- responsibility. See is relieved of defendant Court, by that was view the States, 573, 587, U.S. Shannon United unavailable; previously or (1994) 129 L.Ed.2d 459 114 S.Ct. (ii) predicate that could not a factual concerning con (holding that instruction the previously have been discovered to sequences of an NGI verdict “is not be through diligence; the exercise of due general crimi given [federal as a matter of in practice,” “recogniz[ing] that an but nal] (B) underlying claim the facts would may necessary of some form be struction by clear and be sufficient to establish circumstances” such as under certain limited convincing that but for consti- evidence prosecutor or states when “a witness error, no reasonable factfinder tutional particular a presence of the defen applicant guilty of would have found the ”). Furthermore, ‘go dant would free’ underlying offense. that it should nei court instructed any develop Robison contends that failure to the effect of a ther “consider nor discuss the factual basis of his claim was not attrib- insanity,” by reason of guilty of not verdict attempt utable to his lack of to do so but sufficiently have this instruction should hearing. a “true” He the state’s denial of process rights. safeguarded Robison’s due him a argues that the state denied such (5th Levine, 80 F.3d 129 witnesses, States by See United hearing hearing “true” ob- - denied, -, demeanor, Cir.), serving seeing U.S. their cert. their or credi- (1996) bility by tested cross-examination. (finding L.Ed.2d 40 no viola process or to fair trial tion of due petitioner We have stated that “a prejudicial prosecu effect of the where the develop’ cannot be said have ‘failed “buy[ing] in [Levine’s] tor’s statement factual basis for his claim unless the undevel oped record is a result of his own decision or sanity would mean that Levine defense” omission.” McDonald v. man,” out of this courtroom a free “walk[s] Cir.1998). 1056, 1059 Assuming arguen by by was minimized two instructions that Robison has cleared this initial hurdle do court). district 2254(e)(2), §of he must still show that the denying court abused its discretion in district H hearing. (explaining id. at 1060 See Lastly, argues that the district 2254(e)(2) “specifies § the situations where denying his motion for an court erred allowed, evidentiary hearings are not where evidentiary hearing, request- which Robison (emphasis in they required”) original); are (1) respect newly his ed with discovered (stating subsequent that the see also id. deci (regarding claim his half-sister’s re- evidentiary hearing sion to hold an is “com diagnosis) and claim of cent ineffective pur mitted to the district court’s discretion of counsel based on the failure to assistance Governing suant to Rule 8 of the Rules develop through Robison’s state of mind Cases”). § 2254 our resolution of Given expert. The district court denied Robison’s claims, supra II.B these two see Parts evidentiary hearing on the motion II.F, factual dis which reveals no relevant grounds that meet test set he did not development in putes require that would or 2254(e)(2), pro- claims, forth in 28 which U.S.C. we hold that der to assess vides, part: not abuse its discretion relevant district did insanity, society upon finding is incorrect as to the law of but the

would be released into NGI, did, however, precludes any law discussion of the conse- "[a]t the court state that point permitted quences finding guilty possibly of not reason of the trial court would insanity.” declare a Id. at 476 n. 3. mistrial or instruct 369-70, (citing Skip- 113 S.Ct. at 2670 evidentiary motion for denying Robison’s Carolina, 1, 6, per v. South hearing. (“Con- 1669, 1671, 90 L.Ed.2d past conduct as sideration of a defendant’s Ill probable of his future behavior is indicative reasons, we DENY COA foregoing For the not undesirable element of an inevitable and Penry except on all issues sentencing.”)). criminal respect to the COA. With which GRANT jury that mental If the Robison believed court’s Penry AFFIRM the district influenced Robison to commit the illness merits. dismissal on the murder, that treat- then it could have found DAVIS, M. GARZA and Before EMILIO render him less ment of the illness would STEWART, Judges. Circuit in trial court dangerous the future. The jury to consider all of the instructed the REHEARING PETITION FOR ON determining in submitted at trial evidence special jury Whether the each of the issues. Sept. morally culpa- thought that Robison was less BY THE COURT: illness could have been ble due to his mental special is- taken into account the second argues that rehearing, Robison On sue. mitigating evidence mischaracterized Court misapplied Penry doctrine. See could have considered his and thus Because 302, 322, the time of the crime in mental illness at Penry Lynaugh, issue, answering special it cannot second 2934, 2948, 109 L.Ed.2d be said that the state court decision be- (holding sentence unconstitutional death to, “contrary or involved an unreasonable allow sufficient special issues did not cause of, clearly Federal application established mitigating of men- evidence consideration law, Supreme by the Court.” as determined retardation). alleges that tal 2254(d). 28 U.S.C. mentally ill when he that he was IT IS ORDERED distinct from the committed the murder is ease is DE- rehearing filed the above illness was in remis- evidence that his mental NIED. trial, and that the sion at the time of considering precluded the issues mitigating factor.

the former evidence as a argument nuaneed than the

This is more brief, appellant initial

argument not make this distinction. which did MOORE; Moore, Bob T. Susan argument, reject it consider this but Plaintiffs-Appellants Texas, 509 nonetheless. In Johnson v. Cross-Appellees, 350, 369, 2658, 2669, 125 L.Ed.2d (1993), found that Court INC.; Ashland ASHLAND CHEMICAL youth given could be effect evidence of Inc., Defendants-Appellees Oil in the dangerousness of future assessment Cross-Appellants, argued that special issue. second Johnson forward-looking inquiry into future dan- Corning Corporation; Dow Cdc gerousness did not allow the to consider Services, Inc., Defendants. personal culpa- youth upon bore how his rejected bility for the murder. The Court No. 95-20492. stating argument, that “this forward- Appeals, United States Court independent of an as- looking inquiry is not Fifth Circuit. personal culpability. It is both sessment of Aug. make its logical and fair for the future of a defendant’s dan- determination

gerousness by asking the extent to which conduct.”

youth influenced defendant’s

Case Details

Case Name: Robison v. Johnson

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Aug 28, 1998

Citation: 151 F.3d 256

Docket Number: 16-70004

Court Abbreviation: 5th Cir.