Lead Opinion
Petitioner Robert James Tennard (Ten-nard), convicted of capital murder in Texas and sentenced to death, requests from this Court a Certificate of Appealability (COA) pursuant to 28 U.S.C. § 2253(c)(2). Ten-nard’s sole argument is that the jury was unable to give effect to the mitigating evidence of his mental retardation when answering the special issue with respect to future dangerousness at the punishment phase. Finding that Tennard has not made a substantial showing of the denial of a constitutional right, we DENY the COA.
I. FACTUAL AND PROCEDURAL HISTORY
On October 17, 1985, Tennard was indicted for the capital murder of Larry Neblett (Neblett) committed during the course of a robbery. The following evi
Tennard lived behind the home of the two victims, and he knеw them. The victims had invited Tennard and his two friends into their home approximately fifteen to thirty minutes before they were attacked. Tennard stabbed one of the victims fifteen times with a knife while one of Tennard’s friends killed the other victim with a hatchet. Tennard played a dominant role in disposing of the victims’ stolen property. Tennard presented an alibi defense, and he presented other evidence from which the jury might have concluded that another person possibly could have committed the murders. Based on the above evidence, the jury found him guilty of capital murder.
The evidence from the punishment hearing shows Tennard had been on parole from a felony rape conviction for less than four months when he committed the instant offense. The rape victim testified Tennard and two others forced her into a car while she was at a bus stop. Just after she was forced into the car, Tennard, who was displaying about a foot-and-a-half-long pipe-wrench, threatened to kill her if she moved.
The victim testified Tennard and his friends took her to an abandoned apartment at a government project where Ten-nard forced her to engage in oral, vaginal and anal sex with him. After that, Ten-nard’s two friends took turns sexually assaulting her.
Tennard and his friends then took the victim to another house where he began using drugs and discussing “pimping out” the victim. She asked Tennard if she could go to the restroom to take a bath, which he allowed her to do. She escaped through a window, and Tennard was arrested later thаt day. The victim testified Tennard appeared to be the leader during her ordeal. Defense counsel impeached the victim’s testimony with a prior statement she made from which the jury could have inferred one of Tennard’s accomplices was the leader.
Tennard’s parole officer testified that a Texas Department of Correction’s (TDC) record from his prior incarceration indicated he had an intelligence quotient (I.Q.) of 67. During cross-examination of this witness, the State introduced the TDC record into evidence. This document appears to have been prepared approximately five years before Tennard committed the capital murder offense, and there is a notation providing Tennard had an I.Q. оf 67. However, the parole officer could not say who prepared the report or conducted the I.Q. test. This is all the evidence presented at Tennard’s trial with respect to his “mental retardation.”
Tennard also introduced evidence that he was twenty-two years of age when he
At the conclusion of the punishment phase, the jury affirmatively answered the special issues. Pursuant to Texas law, the trial court sentenced him to death. On direct appeal, the Texas Court of Criminal Appeals affirmed the conviction and sentence. Tennard v. State,
Subsequently, Tennard filed the instant federal habeas petition in district court. The district court denied Tennard’s petition and his request for a COA. Tennard now requests a COA from this Court.
II. ANALYSIS
A. STANDARDS OF REVIEW
Tennard filed his section 2254 application for habeas relief on December 18,1998, which was after the April 24,1996 effective date of the Antiterrorism and Effective Death Penalty Act (AEDPA). His application is therefore subject to the AEDPA. Lindh v. Murphy,
To determine whether a COA should be granted, we must be mindful of the deferential scheme set forth in the AEDPA. Hill v. Johnson,
Further, state court findings of fact are presumed to be correct, and the petitioner has the burden of rebutting the presumption of correctness by clear and convinсing evidence. Section 2254(e)(1).
B. JURY INSTRUCTIONS
In reviewing a Penry claim, we must determine whether the mitigating evidence introduced at trial was constitutionally relevant and beyond the effective reach of the jury. Davis v. Scott,
As previously set forth, during the punishment phase, Tennard called his parole officer, William Kinard (Kinard), as a witness. Kinard testified that an I.Q. test was administered to inmates at TDC as a matter of course. Kinard also testified that a document from TDC provided Ten-nard’s I.Q. was 67. Kinard was the only defense witness who testified before the jury during the punishment phase.
During defense counsel’s closing argument, he referred to Tennard’s “low” I.Q. several times:
Then I called a witness who testified he’s Tennard’s parole officer. Uncon-troverted evidence that when Robert Tennard was examined, when he got out of the penitentiary, by the officials who determined how to classify him, how to treat him, the same information that was communicated to his parole officer, what to do for him, how to help him when he’s out on parole. Information that the prison psychiatrist had, the information that they gave is that Tennard has got a 67 IQ. The same guy that told this poor unfortunate woman [the rape victim] that was trying to work that day, “Well, if I let you in there, will you leave?” And he believed her. This guy with the 67 IQ, and she goes in and, sure enough, she escapes, just like she should have. That is uncontroverted testimony before you, that we have got a man before us that has got an intelligence quotient ... that is that low.
Now you’re charged with acting as Robert Tennard’s peers. You have to judge him as his peers. That’s going to be hard for you to do. None of you grew up where he grew up. Only one of you is black and none of you are suffering from a 67 IQ. So yоu’re going to have to try to judge this man and decide what his punishment would be as his peers. And I would ask you as you do that, as is your responsibility, you take into consideration the things that you have been informed of by me and by things the prosecutor has told you in judging Robert Tennard....
And don’t let [the prosecutor] get up here and tell you to put blinders on and*596 just answer the questions in a vacuum. The law allows you to take all the things into consideration that I talked to you about — attitude toward the death penalty, take all these things into consideration, the 67 IQ — in deciding how you answer the those questions. You have a right to do that under Texas law. Don’t let [the prosecutor] tell you you can’t just look at the evidence and just answer the questions. You are allowed more latitude than that. Rеmember, what you do here will be forever lasting one way or the other....
(emphasis added).
As the record reveals, although defense counsel presented evidence of Tennard’s low I.Q., he did not argue that Tennard was mentally retarded. The Court of Criminal Appeals recognized that the term “mental retardation” was never mentioned in the trial record. Ex parte Tennard,
This Court has explained that evidence of a low I.Q. does not constitute a uniquely severe condition or is within the jury’s effective reach pursuant to the teachings of Penry. Andrews v. Collins,
Nevertheless, Tennard contends that an individual with an I.Q. of 67 has significantly below normal functioning and is presumptively mentally retarded. Thus, he argues, such an individual is less able than a normal adult to control his conduct, evaluate the consequences of his conduct, and learn from his mistakes. To support this proposition, Tennard points out that the American Association of Mental Retardation (AAMR) classified individuals with an I.Q. score of 75 and below as presumptively retarded. See AAMR Mental Retardation: Definition, Classification, and Systems of Supports 14 (9th ed.1992).
The flaw in Tennard’s argument is that he did not establish or argue to the jury that he was mentally retarded. A prison document provided that Tеnnard had an I.Q. score of 67. There was no evidence introduced with respect to the meaning of the score, nor its relation to Tennard’s moral culpability. As stated, the term “mental retardation” was never articulated before the jury. This dearth of evidence is in stark contrast to the “substantial mitigating evidence that Penry was mentally retarded.” Penry v. Johnson,
Even assuming arguendo for purposes of this appeal that Tennard has rebutted with clear and convincing evidence the state court’s finding of no evidence of mental retardation, his claim must fail bеcause he made no showing at trial that the criminal act was attributable to this severe permanent condition.
Tennard is precluded from establishing a Penry claim because he failed to introduce at trial any evidence indicating that the capital murder was in any way attributable to his I.Q. of 67. See Crank v. Collins,
For the above reasons, we conclude that Tennard has not made a substantial showing of the denial of a constitutional right and DENY his request for a COA.
DENIED.
Notes
. The facts are taken directly from the opinion of the Texas Court of Criminal Appeals. Ex parte Tennard,
. During cross-examination, Tennard's parole officer testified as follows:
Q. [T]his doesn’t рurport to be any report by any particular psychologist or anything, does'it?
A. No, sir.
Q. It’s basically just sort of, as its says, social and criminal history of [Tennard]?
A. Right, sir.
Q. And it says, there’s basically a line for IQ, and it says 67?
A. That’s correct.
Q. And it has no indication of who may have given those tests or under what conditions?
A. No sir, it doesn’t.
.
. The record shows that the trial court did not allow defense counsel to call a witness who would have testified that one of Tennard’s accomplices received a life sentence for the instant offense.
. Additionally, in a concurring opinion, Judges Meyers and Price concluded that there was not enough evidence of mental retardation in the record to support Tennard's claim.
. See also Davis,
Dissenting Opinion
Dissenting:
I respectfully dissent.
The threshold question under AEDPA is whether Tennard seeks to apply a rule of law that was clearly established at the time his state-court conviction became final. Williams v. Taylor,
Tennard is entitled to relief because the Texas Court of Criminal Appeals’s adjudication rejecting his Penry I claim resulted in a decision that was (1) “contrary to ... clearly established Federal law, as determined by the Supreme Court of the United States,” and (2) “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) & (2) (West Supp.2001).
At the penalty phase of the trial, Tennard introduced evidence “on his ‘mental retardation.’ ” Ex parte Tennard,
1.
The finding of fact of the Texas Court of Criminal Appeals that there was no evidence in the record that Tennard is mentally retarded was patently an “unreasonable [factual] determination.” “‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probablе than it would be without the evidence.” Fed.R.Evid. 401. The evidence in the record of Tennard’s child-like credulity and I.Q. of 67 had a tendency to make the existence of his mental retardation more probable that it would be without that evidence.
2.
In Penry I, the Supreme Court held that (1) “at the time Penry’s conviction became final, it was clear from Lockett and Eddings that a State could not, consistent with the Eighth and Fourteenth Amendments, prevent the sentencer from considering and giving effect tо evidence relevant to the defendant’s background or character or to the circumstances of the offense that mitigate against imposing the death penalty[,]”
Thus, the Supreme Court in Penry I agreed with Penry’s argument “that his mitigating evidence of mental retardation and childhood abuse has relevance to his moral culpability beyond the scope оf the special issues, and that the jury was unable to express its reasoned moral response to that evidence in determining whether death was the appropriate punishment.” Id. at 322,
The first special issue, which asked whether the defendant acted “deliberately and with the reasonable expectation that the death of the deceased ... would result,” impermissibly limited the jury’s function because the term “deliberately” had not been defined by the Texas Legislature, the Texas Court of Criminal Appeals, or the trial court’s instructions. Id. at 322,
The second special issue, which asked “whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society,” permitted the jury to consider and give effect to Penry’s mental retardation and childhood abuse as “relevant only as an aggravating factor.... ” Id. But the second special issue was not inadequate simply because it only gave effect to Penry’s evidence as an aggravating factor; it was dysfunctional for the independent reason that it did not allow the jury to give “full consideration [to the] evidence that mitigates against the death penalty.” Id. at 328,
As the justices who dissented in part in Penry acknowledged, the Perny majority held “that the constitutionality [of a death sentence under the Texas special issues] 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 ways, including ways that the questions do not permit.” Id. at 355,
The Court in Penry I expressly rejected the State’s argument that any defect in the jury instructions should be disregarded because Penry’s defense counsel was able to argue that jurors who believed that Penry, because of his mitigating evidence of mental retardation and childhood abuse, did not deserve a death sentence should vote “no” on one of the special issues regardless of the State’s proof on that the answer. Id. at 325,
Further, the Court reaffirmed and quoted its opinion in McCleskey v. Kemp: “ ‘In contrast to the carefully defined standards that must narrow a sentencer’s discretion to impose the death sentence, the Constitution limits a State’s ability to narrow a sentencer’s discretion to consider relevant
Indeed, it is precisely because the punishment should be directly related to the personal culpability of the defendant that the jury must be allowed to consider and give effect to mitigating evidence relevant to a defendant’s character or record or the circumstances of the offense .... In order to ensure reliability in the determination that death is the appropriate punishment in a specific case, the jury must be able to consider and give effect to any mitigating evidence relevant to a defendant’s background and character or the circumstances of the crime.
Id. at 327-28,
Tennard is entitled to relief under 28 U.S.C. § 2254(d)(1) because the decision of thе Texas Court of Criminal Appeals rejecting his Penry I claim is based on rationales that were rejected generally and specifically by Penry I. In general, the Supreme Court in Penry I agreed with Pen-ry’s argument “that his mitigating evidence of mental retardation and childhood abuse has relevance to his moral culpability beyond the scope of the special issues, and that the jury was unable to express its ‘reasoned moral response’ to that evidence in determining whether death was the appropriate punishment [and] rejected] the State’s contrary argument that the jury was able to consider and give effect to all of Penry’s mitigating evidence in answering the special issues without any jury instructions on mitigating evidence.” Penry I,
Moreover, the decision of the Texas Court of Criminal Appeals was contrary to Penry I in at least three specific ways. First, in contradiction of Penry I, the Texas Court of Criminal Appeals held that, in order have his mitigating evidence of mental retardation considered and given effect by the jury, Tennard must introduce additional evidence that his low I.Q. rendered him unable to appreciate the wrongfulness of his conduct or to learn from his mistakes or diminished his ability to control his impulses or evaluate the consequences of his conduct. The state-court’s reading of that additional requirement into Penry I is based on a misinterpretation of dicta
Second, the Texas Court of Criminal Appeals also held, contrary to Penry I, that the Supreme Court’s decision does not apply under special issue two in the absence of evidence tending to cause the jury to give only aggravating effect to the evidence of defendant’s low I.Q., Tennard,
Third, the state court of criminal appeals held, contrary to Penry I, that the special issues did not place mitigating qualities of the evidence of Tennard’s low I.Q. beyond the effective reach of the jury because “[t]he jury could have used this evidence for a ‘no’ answer to the first special issue on ‘deliberateness.’ ” Tennard,
Finally, in the concluding paragraph of Section III of Penry I, the Supreme Court again expressly rejected all three of the rationales set forth by the Texas Court of Criminal Appeals in the present case for denying Tennard a writ of habeas corpus:
In this case, in the absence of instructions informing the jury that it could consider and give effect to the mitigating evidence of Penry’s mental retardation and abused background by declining to impose the death penalty, we conclude that the jury was not provided with a vehiсle for expressing its reasoned moral response to that evidence in rendering its sentencing decision. Our reasoning in Lockett and Eddings thus compels a remand for resentencing so that we do not risk that the death penalty wfll be imposed in spite of factors which may call for a less severe penalty. When the choice is between life and death, that risk is unacceptable and incompatible with the commands of the Eighth and Fourteenth Amendments.
Id. at 328,
3.
The flawed majority opinion reaches an incorrect result because it ignores the authoritative interpretation of 28 U.S.C. § 2254(d) set forth by the Supreme Court in Williams for deciding whether the adjudication of Tennard’s Penry I claim by the Texas Court of Criminal Appeals resulted in a decision that was contrary to clearly established Federal law, as determined by the Supreme Court.
Instead of following the teachings of Williams, as set forth and applied in the foregoing sections of this dissent, the majority relies upon and applies prior decisions of this circuit which were based on the dicta, as opposed to the holding, of Penry I. The majority concludes that a petitioner, such as Tennard, who makes a Penry I claim, “must show there is a nexus between the severe permanent condition (here, alleged mental retardation) and the capital murder.” Maj. Op. at 596-97 (citing Boyd v. Johnson,
The Supreme Court in Penry I concluded that the rule sought by Penry — “that when mitigating evidence of mental retardation or abused childhood is presented, Texas juries must, upon request, be given jury instructions that make it possible for them to give effect to that mitigating evidence in determining whether the death penalty should be imposed” — was not a “new rule” under Teague because it was dictated by Eddings and Lockett. Penry I,
*603 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 because of the belief, long held by this society, that defendants who commit criminal acts that are attributаble to a disadvantaged background, or to emotional and mental problems, may be less culpable than defendants who have no such excuse. 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 would reflect a reasoned moral response to the defendant’s background, character, and crime.
For the foregoing reasons the decision of the Texas Court of Criminal Appeals was contrary to the clearly established holding of Penry I, and Tennard should be granted a COA to pursue habeas relief.
. Tennard’s direct state appeal was decided November 28, 1990, and his motion for rehearing was overruled January 30, 1991. Tennard v. State,
. In a previous offense, Tennard was easily fooled into allowing a victim to go to the restroom and escape because he believed her promise not to run away. Ex parte Tennard,
. Findings of fаct by panels of this court in other cases are not binding upon this panel under the doctrine of stare decisis. See, e.g., 18 James Wm. Moore et al., Moore’s Federal Practice § 134.05[3] (3d ed. 1999) ("The doctrine of stare decisis does not apply to the determination of the facts of a case.”).
. The statutory phrase "clearly established Federal law, as determined by the Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1), "refers to the holdings, as opposed to the dicta, of this Court's decisions as of the time of the relevant state-court decision.” Williams,
. In Penry I, the Court observed in passing that "[i]f the sentencer is to make an individualized assessment of the appropriateness of the death penalty, 'evidence about the defendant's background and character is relevant because of the belief, long held by this society, that dеfendants who commit criminal acts that are attributable to a disadvantaged background, or to emotional or mental problems, may be less culpable than defendants who have no such excuse.' ” Penry I,
. The Texas Court of Criminal Appeals relied upon the same dicta for a somewhat similar nexus rule. See discussion supra p. 598.
. See also Williams,