IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-20868
JOHNNY PAUL PENRY,
Petitioner-Appellant,
versus
GARY L. JOHNSON, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,
Respondent-Appellee.
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Appeal from the United States District Court
for the Southern District of Texas
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August 14, 2001
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before DAVIS, EMILIO M. GARZA and DENNIS, Circuit Judges
PER CURIAM:
In 1980, Johnny Paul Penry was convicted in Texas state
court of the capital murder of Pamela Carpenter. He was
sentenced to death. The United States Supreme Court vacated
Penry’s sentence because the jury had not been adequately
instructed with respect to mitigating evidence. Penry v.
Lynaugh, 492 U.S. 302 (1989). The State of Texas retried Penry
in 1990 and Penry was again convicted of capital murder and
sentenced to death. The Texas Court of Criminal Appeals affirmed
Penry’s conviction and sentence on direct appeal and denied
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Penry’s state application for a writ of habeas corpus. Penry
then filed a federal application for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. The district court denied federal
habeas relief and denied Penry’s motion for a certificate of
appealablity (COA) to challenge its decision. Penry filed a
motion for a COA in this court, which we denied. Penry v.
Johnson, 215 F.3d 504, 512 (5th Cir. 2000).
Thereafter, Penry petitioned for, and the United States
Supreme Court granted, a writ of certiorari. Penry v. Johnson,
121 S. Ct. 563 (2000). The Supreme Court affirmed our order
denying Penry’s motion for a COA except with respect to Penry’s
claim that he was sentenced to death in violation of the Eighth
and Fourteenth Amendments because the jury instructions given in
his case prevented jurors from considering and giving effect to
substantial mitigating evidence that Penry was mentally retarded
and was severely abused as a child. Penry v. Johnson, 121 S. Ct.
1910, 1924 (2001). The Court reversed our denial of a COA as to
that issue and remanded the case to this court for further
proceedings. Id. The Court held that the Texas Court of
Criminal Appeals unreasonably applied clearly established federal
law in concluding that the jury instructions given in Penry’s
case satisfied the Eighth and Fourteenth Amendments. Id. at
1918, 1924.
In light of the Supreme Court’s decision, we GRANT Penry’s
motion for a COA with respect to his jury instruction claim,
VACATE the district court’s judgment denying Penry’s application
for a federal writ of habeas corpus, and REMAND the case to the
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district court. The district court is instructed to grant
Penry’s application for a writ of habeas corpus unless the State
of Texas within a reasonable time either grants Penry a new trial
on the issue of punishment only, as permitted by Tex. Code Crim.
Proc. art. 44.29(c), or vacates Penry’s sentence and imposes a
sentence less than death. See Moore v. Johnson, 194 F.3d 586,
622 (5th Cir. 1999).
COA GRANTED; VACATED and REMANDED.