UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
___________
No. 97-10240
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LARRY KEITH ROBISON,
Petitioner-Appellant,
versus
GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,
Respondent-Appellee.
Appeal from the United States District Court
for the Northern District of Texas, Fort
Worth
September 21, 1998
ON PETITION FOR REHEARING
Opinion August 13, 1998, 5th Cir. 1998, ___F.3d ___)
Before DAVIS, EMILIO M. GARZA, and STEWART, Circuit Judges.
BY THE COURT:
On rehearing, Robison argues that this Court mischaracterized
mitigating evidence and thus misapplied the Penry doctrine. See
Penry v. Lynaugh, 492 U.S. 302, 322, 109 S. Ct. 2934, 2948, 109 L.
Ed. 2d. 256 (1989) (holding death sentence unconstitutional because
special issues did not allow sufficient consideration of mitigating
evidence of mental retardation). Robison alleges that the evidence
that he was mentally ill when he committed the murder is distinct
from the evidence that his mental illness was in remission at the
time of trial, and that the special issues precluded the jury from
considering the former evidence as a mitigating factor. This
argument is more nuanced than the argument in Robison’s initial
appellant brief, which did not make this distinction.
We consider this argument, but reject it nonetheless. In
Johnson v. Texas, 509 U.S. 350, 369, 113 S. Ct. 2658, 2669, 125 L.
Ed. 2d 290 (1993), the Supreme Court found that evidence of youth
could be given effect in the assessment of future dangerousness in
the second special issue. Johnson argued that the forward-looking
inquiry into future dangerousness did not allow the jury to
consider how his youth bore upon his personal culpability for the
murder. The Court rejected this argument, stating that “this
forward-looking inquiry is not independent of an assessment of
personal culpability. It is both logical and fair for the jury to
make its determination of a defendant’s future dangerousness by
asking the extent to which youth influenced the defendant’s
conduct.” Id. at 369-70, 113 S. Ct. at 2670 (citing Skipper v.
South Carolina, 476 U.S. 1, 5, 106 S. Ct. 1669, 1671, 90 L. Ed. 2d
1 (1986)(“Consideration of a defendant’s past conduct as indicative
of his probable future behavior is an inevitable and not
undesirable element of criminal sentencing.”)).
If the Robison jury believed that mental illness influenced
Robison to commit the murder, then it could have found that
treatment of the illness would render him less dangerous in the
future. The trial court instructed the jury to consider all of the
evidence submitted at trial in determining each of the special
issues. Whether the jury thought that Robison was less morally
culpable due to his mental illness could have been taken into
account in the second special issue.
Because the jury could have considered his mental illness at
the time of the crime in answering the second special issue, it
cannot be said that the state court decision was “contrary to, or
involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court.” 28 U.S.C. §
2254(d).
IT IS ORDERED that the petition for rehearing filed in the
above case is DENIED.