Smith v. Cockrell

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 01-21209
_____________________

ROBERT SMITH

Petitioner - Appellee -
Cross-Appellant
v.

JANIE COCKRELL, DIRECTOR, TEXAS
DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION

Respondent - Appellant -
Cross-Appellee

_________________________________________________________________

Appeals from the United States District Court
for the Southern District of Texas
_________________________________________________________________
November 4, 2002

Before KING, Chief Judge, and HIGGINBOTHAM and BENAVIDES, Circuit
Judges.

KING, Chief Judge:

Respondent–Appellant–Cross-Appellee Janie Cockrell appeals

the decision by the District Court for the Southern District of

Texas to grant habeas corpus relief to Petitioner-Appellee-Cross-

Appellant Robert Smith. Upon careful review of the decisions of

the district court and state habeas court, as well as the record,

the briefs of the parties, and the applicable law, we are of the
opinion that the district court erred in granting Smith’s motion

for habeas corpus relief on the grounds of ineffective assistance

of counsel and an unconstitutional jury instruction. We

therefore reverse the district court’s judgment holding that

Smith is entitled to habeas relief. Treating Smith’s cross-

appeal of the district court’s denial of four additional grounds

for habeas relief as an application for a certificate of

appealability (COA) on those issues, we deny a COA on all

grounds. Finally, for the first time in this appeal, Smith

raises a claim based on the Supreme Court’s recent decision in

Atkins v. Virginia, 122 S. Ct. 2242 (2002). We decline to

consider it.

I. Factual Background

In the evening of May 15, 1990, Smith and his accomplice1

entered a Houston clothing store about fifteen minutes before

closing. The two men wandered through the store; the clerk on

duty, Ms. Kim, became suspicious. She attempted to signal a

friend at another store that she was in trouble; she also picked

up the phone to call the operator for help. Before she could

speak, though, Smith stuck a gun to her head, ordering her to

hang up the phone and lay on the ground. At that point Ms. Kim’s

1
The accomplice in this case was never identified or
charged. Smith allegedly met the man shortly before the robbery
and did not know how to locate him afterward; he knew the man
only as “Larry.”

2
friend entered the store; Smith’s accomplice sprayed the friend

with mace.

Smith was unable to open the cash register, so he ordered

Kim to stand and retrieve the money from the register. Kim did

this; she also surreptitiously moved Smith’s car keys from the

place where he had set them on the sales counter. Smith and his

accomplice fled the store with the money but without his keys.

After the two men left, Kim called the police and informed local

security guards of the robbery.

Smith and his accomplice ran in the direction of their car,

parked at a nearby K-Mart. As they approached the car, they

crossed paths with Mr. Griffith, the K-Mart security supervisor;

Smith told Griffith to call for an ambulance because the clothing

store was on fire. Griffith saw no fire and did not call an

ambulance; however, as Griffith was getting into his car, he

heard Smith say “I can’t find the fucking keys. I can’t find the

fucking keys.” At that point, Smith and his accomplice left the

car and fled.

Soon after, another security guard informed Griffith of the

robbery. Griffith and the guard got into his car and pursued the

two robbers. Griffith saw the two men jump a fence into an

abandoned trailer park; he drove the car to an entrance where the

gate had been knocked down. About fifteen seconds elapsed

between the time Smith and his accomplice jumped the fence and

3
the time that Griffith and the security guard arrived at the

entrance to the trailer park.

As he was exiting the car, Griffith heard a gunshot from

within the trailer park; he and the guard took cover in a nearby

copse of trees. They heard voices from inside the park. Then, a

truck engine started, headlights came on, and the truck headed in

Griffith’s direction. Griffith fired four warning shots into the

air, causing the robbers to stop the truck and flee on foot.

At that point, the police arrived. Griffith and the

security guard returned to the K-Mart parking lot to keep an eye

on the suspects’ car. The police entered the park with a K-9

unit; the dog tracked Smith into a wooded area. The dog located

Smith hiding in some underbrush; the police arrested him.

As another officer approached the abandoned truck, he

noticed a partially collapsed tent nearby. A deceased male,

later identified as James Wilcox, lay on top of the tent. He had

been shot in the arm; the bullet passed through his arm into his

chest cavity, where it passed through his lungs and severed

several major arteries. Smith confessed to robbing the clothing

store and to shooting Wilcox; he claimed that, as he told Wilcox

that the police were after him and asked for a ride in his truck,

Wilcox grabbed his hand and leg. Smith shot Wilcox in the arm in

order to get Wilcox to let go of him.

Two days later, on May 17, George Parnham, a board-certified

criminal defense lawyer, was appointed to represent Smith in the

4
case. At that same time, Carlos Correa, another attorney with

whom Parnham was not previously acquainted, was appointed co-

counsel.

II. Procedural History

On August 30, 1990, Robert Smith2 was indicted for capital

murder for the shooting of James Wilcox during the course of

flight from an armed robbery. Parnham several times attempted to

convince Smith to accept a plea bargain; Smith refused, stating

that he wanted his day in court before a jury. At the January,

1992 trial, a jury convicted Smith of capital murder. At a

separate punishment hearing, the jury returned findings to the

special issues that mandated the imposition of a death sentence.

The Court of Criminal Appeals upheld Smith’s conviction and

sentence on direct appeal. Smith v. State, 898 S.W.2d 838 (Tex.

Crim. App. 1995). The United States Supreme Court denied Smith’s

petition for certiorari. Smith v. Texas, 516 U.S. 843 (1995).

On April 24, 1997, Smith filed an application for writ of

habeas corpus with a Texas state court pursuant to article 11.071

of the Texas Code of Criminal Procedure. In addition to

considering the merits of the arguments put forth in the

application, the state habeas court also held a short evidentiary

2
Robert Smith is the alias the petitioner was using at
the time he was arrested and convicted in this case. Other
records list his name as Robert Lee Johnson; in the state habeas
evidentiary proceedings, he was referred to as Robert Lee McBride
(which is apparently his true given name).

5
hearing regarding Smith’s claim that he received ineffective

assistance of counsel during the punishment phase of his trial.

The state habeas court, on March 11, 1998, issued its findings of

fact and conclusions of law; the court recommended that the Court

of Criminal Appeals deny all of Smith’s alleged grounds for

relief. The Court of Criminal Appeals held that the state habeas

court’s findings of fact and conclusions of law had support in

the record; the court denied relief. Ex parte Smith, No. 40,871-

01 (Tex. Crim. App. Apr. 21, 1999) (unpublished op.).

Smith filed a skeletal petition for habeas corpus with the

District Court for the Southern District of Texas on November 10,

1999 and filed a supplemental petition on July 14, 2000. The

State moved for summary judgment; while Smith responded to that

motion, he did not also request summary judgment. Though Smith

requested an evidentiary hearing to aid the district court in

reaching its decision, the district court declined to hold one.

On October 31, 2001, the district court granted Smith’s

request for habeas relief on two grounds: (1) ineffective

assistance of counsel under Strickland v. Washington, 466 U.S.

668 (1984); and (2) the jury’s inability, given the special

issues in the punishment phase, to consider Smith’s mitigating

evidence as required by Penry v. Lynaugh, 492 U.S. 302 (1989).

The district court granted the State’s motion for summary

judgment on all of Smith’s remaining issues raised in his

petition and denied Smith a COA on those issues. The court

6
ordered Smith released unless the state of Texas granted him a

new sentencing hearing within 180 days.3 The State filed a

notice of appeal on November 29, 2001; Smith cross-appealed on

December 31, 2001.

III. Applicable Law

As the petitioner filed his original habeas petition on

November 10, 1999, the Antiterrorism and Effective Death Penalty

Act (“AEDPA”) governs review of this case. See Lindh v. Murphy,

521 U.S. 320, 326-27 (1997) (stating that the AEDPA applies to

all cases pending as of April 24, 1996). Under the AEDPA, a writ

of habeas corpus will not be granted with respect to any claim

previously adjudicated on the merits in state court unless the

adjudication of the claim:

(1) 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

(2) 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)-(2) (2000).

For pure questions of law and mixed questions of law and

fact adjudicated on the merits in state court, the standard

articulated in § 2254(d)(1) applies: the state court decision

must have been either “contrary to” or “an unreasonable

3
That order has been stayed pending the outcome of this
appeal.

7
application of” clearly established precedent. Martin v. Cain,

246 F.3d 471, 475 (5th Cir.), cert. denied, 122 S. Ct. 194 (2001)

(mem. op.). For a state decision to have been “contrary to”

established precedent, the state court must have either

“arrive[d] at a conclusion opposite to that reached by [the

Supreme Court] on a question of law” or “confront[ed] facts that

are materially indistinguishable from a relevant Supreme Court

precedent and arrive[d] at a decision opposite to” the one

reached by the Court. Williams v. Taylor, 529 U.S. 362, 405

(2000). A state court decision is an “unreasonable application

of” clearly established precedent “if the state court

identifie[d] the correct governing legal principle from [the

Supreme] Court’s decision but unreasonably applie[d] that

principle to the facts of the prisoner’s case.” Id. at 413.

For purely factual issues, the AEDPA precludes federal

habeas relief unless the state court’s decision on the merits 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) (2000). In addition, the state court’s factual

determinations carry a presumption of correctness; to rebut them,

the petitioner must present clear and convincing evidence to the

contrary. 28 U.S.C. § 2254(e)(1) (2000).

Finally, although Smith did not move for summary judgment in

this case, the district court’s decision essentially granted

summary judgment in his favor on the Strickland and Penry issues.

8
While, “[a]s a general principle, Rule 56 of the Federal Rules of

Civil Procedure, relating to summary judgment, applies with equal

force in the context of habeas corpus cases,” Clark v. Johnson,

202 F.3d 760, 764 (5th Cir.), cert. denied, 531 U.S. 831 (2000),

the rule applies only to the extent that it does not conflict

with the habeas rules. Therefore, § 2254(e)(1) – which mandates

that findings of fact made by a state court are “presumed to be

correct” – overrides the ordinary rule that, in a summary

judgment proceeding, all disputed facts must be construed in the

light most favorable to the nonmoving party. Unless Smith can

“rebut[] the presumption of correctness by clear and convincing

evidence” as to the state court’s findings of fact, they must be

accepted as correct.

IV. Petitioner’s Claim of Ineffective Assistance of Counsel

A. The Strickland Standard

To prevail on a claim for ineffective assistance of counsel,

petitioner must satisfy the two-part test set forth in Strickland

v. Washington, 466 U.S. 668 (1984). First, the petitioner must

show that counsel’s performance was objectively unreasonable.

Id. at 688. This requires a showing that “counsel made errors so

serious that counsel was not functioning as the ‘counsel’

guaranteed the defendant by the Sixth Amendment.” Id. at 687.

However, there is a strong presumption that counsel was

competent. See id. at 689:

9
 Judicial scrutiny of counsel’s performance must be highly
deferential. It is all too tempting for a defendant to
second-guess counsel’s assistance after conviction or
adverse sentence, and it is all too easy for a court,
examining counsel’s defense after it has proved
unsuccessful, to conclude that a particular act or
omission of counsel was unreasonable.

Id. For example, counsel’s “conscious and informed decision on

trial tactics and strategy” is not a permissible basis for a

claim of ineffective assistance of counsel unless the strategy

was so poor that it robbed the defendant of any opportunity to

get a fair trial. Green v. Johnson, 116 F.3d 1115, 1122 (5th

Cir. 1997) (citation omitted). So long as counsel made an

“adequate investigation,” any strategic decisions made as a

result of that investigation “fall within the wide range of

objectively reasonable professional assistance.” Moore v.

Johnson, 194 F.3d 586, 591-92 (5th Cir. 1999).

Second, a mere showing that counsel was deficient is not

sufficient to merit habeas relief for ineffective assistance of

counsel; the petitioner must also demonstrate that, but for

counsel’s ineffective performance, there is a reasonable

probability that a different outcome would have been reached.

Strickland, 466 U.S. at 694. “A reasonable probability is a

probability sufficient to undermine confidence in the outcome.”

Id.

B. Facts and Evidence Relating to Counsel’s Performance

10
 Smith’s ineffective assistance of counsel claim arises from

the punishment phase of his trial. Smith claims that his

attorneys were deficient in failing to investigate and present

mitigating evidence relating to mental retardation and to organic

or neurological brain injury resulting from a childhood

automobile accident.

A defense counsel’s failure to engage in an appropriate

investigation of potential mitigating evidence in the punishment

phase can support a claim of ineffective assistance of counsel.

Williams, 529 U.S. at 390 (noting that such a claim is governed

by the Strickland test). However, a failure to investigate,

develop, or present mitigating evidence is not ineffective

assistance per se. Moore, 194 F.3d at 615. “[C]ounsel has a

duty to make reasonable investigations or to make a reasonable

decision that makes particular investigations unnecessary. In

any ineffectiveness case, a particular decision not to

investigate must be directly assessed for reasonableness in all

the circumstances, applying a heavy measure of deference to

counsel’s judgments.” Strickland, 466 U.S. at 691. Furthermore,

this court has stated that we “must be particularly wary of

‘arguments that essentially come down to a matter of degrees.

Did counsel investigate enough? Did counsel present enough

mitigating evidence? Those questions are even less susceptible

to judicial second-guessing.’” Dowthitt v. Johnson, 230 F.3d

733, 743 (5th Cir. 2000), cert. denied, 532 U.S. 915 (2001)

11
(quoting Kitchens v. Johnson, 190 F.3d 698, 703 (5th Cir. 1999)).

The state habeas court, after reviewing the arguments and

conducting a short evidentiary hearing to take testimony from Mr.

Parnham, Smith’s lead counsel, made the following findings of

fact:

27. The Court finds, based on the statement of facts
from trial, that defense counsel asked psychiatrist
Fred Fason, M.D., to evaluate the applicant because
of the applicant’s low I.Q. scores; that defense
counsel furnished Fason with the applicant’s school
records, a description of the instant offense, and
a videotape; and, that defense counsel requested
that Fason determine whether the applicant’s
borderline mental retardation rendered the
applicant incompetent to stand trial and whether
the applicant was sane at the time of the instant
offense.

28. At the request of defense counsel, psychiatrist
Fason observed some of the punishment proceedings,
including the applicant’s testimony, and defense
counsel questioned Fason regarding his observations
of the punishment proceedings.

29. The Court finds, based on a review of the trial and
habeas proceedings, that the applicant fails to
demonstrate that examination of the applicant by a
mental health expert other than psychiatrist Fred
Fason, M.D., would have resulted in findings other
than those testified to by Fason in the instant
trial.

30. The Court finds, based on a review of the statement
of facts at trial and habeas proceedings, that
defense counsel Parnham investigated the facts of
the instant offense; that Parnham investigated and
developed facts material to the punishment phase of
trial such as the applicant’s background, personal
history, and social, medical, and mental history;
and that Parnham investigated, developed, and
presented mitigating evidence at trial.

12
State Habeas Court’s Findings of Fact ¶¶ 27-30. Based on these

facts, the state habeas court concluded that Parnham had provided

effective assistance:

5. The applicant fails to demonstrate deficient
performance of defense counsel, much less harm in
the following areas: alleged failure to
investigate, develop, and present mitigating
evidence and alleged failure to argue effectively
at the punishment phase of trial.

6. Additionally, because defense counsel investigated,
developed, and presented mitigating evidence at
punishment regarding the applicant’s background,
social, medical, and mental history, the
applicant’s claim of ineffective assistance of
counsel is without merit.

7. Additionally, because the applicant fails to
demonstrate that the examination of the applicant
by a mental health expert other than psychiatrist
Fred Fason, M.D., would have resulted in findings
other than those testified to by Fason at trial,
the applicant’s claim of ineffective assistant
[sic] of counsel alleging that the applicant should
have been examined by a “competent” psychological
or neurological expert is without merit.

8. Additionally, defense counsel’s closing argument at
punishment constituted reasonable trial strategy.

State Habeas Court’s Conclusions of Law ¶¶ 5-8 (citation

omitted).

In his application to the district court, Smith presented no

new evidence that had not been before the habeas court, and the

district court held no evidentiary hearings to supplement the

state habeas court’s findings. Although the district court

appeared to recognize that it was bound by the deferential AEDPA

standards in reviewing the state habeas court’s decision, the

13
district court granted Smith’s request for relief. The district

court found that the state habeas court unreasonably applied the

Strickland standard when it concluded that Smith’s counsel had

not been ineffective during the punishment phase. The district

court stated that the decision not to investigate or present such

evidence was not a tactical or strategic choice made by the

attorneys. Instead, the failure to investigate potential

evidence of the long-term effects of a head injury and the

petitioner’s borderline mental status constituted objectively

unreasonable performance. The court went on to find that, but

for this failure, there existed a reasonable possibility that the

jury would have either been unable to answer the special issues

unanimously or would have answered them “no” – in either case

making Smith ineligible for the death penalty.4

As stated, Smith claims that there was mitigating evidence

that his counsel should have discovered in two areas: (1)

possible mental deficiency or retardation; and (2) possible long-

4
Texas law requires, for an imposition of the death
sentence, that the jurors be unanimous if they answer “yes” to
the special issues. TEX. CRIM. PROC. CODE ANN. § 37.0711 (Vernon
2002) (stating requirements for offenses committed prior to
September 1, 1991). Therefore, in order to prove that, but for
counsel’s deficient performance, the outcome would have been
different, petitioner must demonstrate only that there is a
reasonable probability that at least one juror could have
answered the special issues differently had the petitioner’s
counsel performed effectively.

14
term effects of a head injury.5 We will examine the evidence

presented before the state habeas court on each issue to

determine whether that court’s decision on this issue was an

unreasonable application of federal law.

1. Mental Deficiency or Retardation

At the punishment phase of Smith’s trial, counsel called

several witnesses to testify as Smith’s mental capabilities.

Smith’s father, Johnny Vern McBride, stated that Smith read at a

“low level” and that he had not attended school regularly past

about the fourth or fifth grade. Also, when asked if he knew

what Smith’s I.Q. was, McBride responded that he understood what

I.Q. was but knew only that Smith was “hard to learn for some

reason.”

The petitioner also testified on his own behalf at the

punishment phase proceedings. He testified that he had gotten as

far as the eighth grade but that he did not know what his I.Q.

5
Smith also notes, not as an independent Strickland claim
but as “background” information for this court to consider, that
Mr. Parnham at the state habeas proceeding repeatedly testified
to the poor performance of co-counsel, Mr. Correa. At the state
habeas court’s evidentiary hearing, Mr. Parnham recalled Mr.
Correa being little involved in any aspect of the case, going so
far as to read the newspaper and work crossword puzzles during
meetings, witness interviews, and voir dire. Mr. Parnham also
recalled that Mr. Correa was virtually no help during trial
(where he could have been taking notes, proposing questions,
etc.). While Smith, in his brief, argues that Correa was
responsible for preparing and presenting the mitigation defense,
there is no evidence in the record to support such a claim. Mr.
Parnham never testified that he and Mr. Correa had divided up the
work in such a manner.

15
was. Smith did recall that a doctor had examined him at

approximately age 16 and had diagnosed him as being mildly

mentally retarded.

Smith’s main mitigation witness during the punishment phase,

called to discussed Smith’s mental abilities, was Dr. Fred Fason,

a psychiatrist who had been in private practice for over twenty

years and who was board certified by the American Board of

Psychiatry and Neurology. Dr. Fason stated that Mr. Parnham had

initially contacted him to determine whether, in light of Smith’s

“low I.Q. scores,” Smith was competent to stand trial. He also

stated that, for the purposes of examining Smith, he had obtained

records – including school records – from Mr. Parnham. On cross-

examination, the following exchange occurred:

Q: Now, Doctor, I think you spoke of the defendant’s
I.Q.?

A: Yes.

Q: Okay. Where would you place him when considering
to be borderlineish? For what?

A: I would definitely say borderline. Now, my
estimate of his I.Q. came from the tests that I
read in the record where he at one scored a 64
which would put him below and make him definitely
retarded. At another time it would be 74. . . .
Now, that is correct that behavior and those
answers [to some basic testing questions] are
consistent with the previous psychological tests of
a person who is borderline intelligence. Now, I
felt in talking with him, from the way his mental
process worked it’s true hew [sic] was a slow
learner in special education classes but I felt the
way he related things to me that he was above the
cutoff line for mental retardation where had he
been much more retarded then [sic] what he has

16
 started moving into the point about whether he’s
really competent. But I felt he was above the line
but he didn’t – to be honest with you, he doesn’t
have a lot left over or a lot extra upstairs.

Dr. Fason, in addition to testifying about mental

retardation, also testified concerning topics relevant to the

jury’s special issues. First, Dr. Fason attempted to demonstrate

that Smith would not be a danger to society past approximately

the age of forty.6 Dr. Fason’s ultimate diagnosis was that Smith

suffered from an “antisocial reaction” rather than mental

retardation. Fason described the condition as one where Smith

would understand that what he was doing was wrong at the time he

was doing it but that he would not care that it was wrong. He

stated that people suffering from antisocial reaction lacked the

types of “drive control” that other people have; these controls

stop a person from simply doing what he wants because they ensure

that he understands and appreciates the effects that his actions

have on those around him. Dr. Fason estimated that this

condition began to manifest itself during Smith’s teenage years

and resulted in part from the death of his mother. Dr. Fason also

indicated that he was very confident that antisocial reaction was

the appropriate diagnosis for Robert Smith.

Dr. Fason then discussed the prognosis for patients

suffering from antisocial reaction disorder. He opined that,

6
The second special issue read: “Is there a probability
that the defendant, Robert Smith, would commit criminal acts of
violence that would constitute a continuing threat to society?”

17
while antisocial reaction is fairly common among people in their

late teens and early twenties, by the time these people reach age

forty they generally no longer suffer from problems controlling

their impulses. By the time they enter their thirties, people

with antisocial reaction have matured sufficiently to begin

better to appreciate the effects their actions have on other

people. Dr. Fason emphasized that point repeatedly. See, e.g.,

Tr. Vol. XLV at 24 (“And past age 40 you rarely ever see someone

with this diagnosis past the age of 40.”); Tr. Vol. XLV at 26

(“They get into their late twenties or early thirties or

sometimes mid-thirties and they start realizing they do care and

telling themselves they don’t care doesn’t work any more.”); Tr.

Vol. XLV at 27 (“What happens to them when they get to their

forties? Occasionally you will see one but it is relatively rare

or at least uncommon in comparison to the number of individuals

that fall into this diagnostic category in their twenties.”).

Dr. Fason also testified as to whether Smith was able to

deliberate on his actions.7 In doing so, he said that he

considered Smith’s I.Q. in making his determination. Dr. Fason

said that Smith did not deliberate before doing things and that

he “never ponders or weighs or balances things.” Perhaps most

importantly for our purposes, Dr. Fason testified that Smith’s

7
The first special issue stated: “Was the conduct of the
defendant, Robert Smith, that caused the death of the deceased
committed deliberately and with the reasonable expectation that
the death of the deceased or another would result?”

18
inability to deliberate or to appreciate the effects of his

actions was not a product of “just his I.Q. It’s a product of

someone with an I.Q. of 64, 74 or whatever it is. It’s the

product of a personality disorder and this is the product of a

voice inside you . . . .”

Mr. Parnham made Smith’s inability to deliberate the

centerpiece of his closing argument. As Dr. Fason had done, Mr.

Parnham did not argue that Smith’s low I.Q. had contributed to

his commission of this crime, saying that he was “sure Robert

thought he held his own. Sixty four I.Q., 74; he stuck by his

guns and maintained a certain machoism, same thing underscores

his statement to [an officer who had discovered Smith smuggling

marijuana into his trial], you guys can’t do anything, can’t stop

me.”

During the punishment phase of the trial, the State for the

first time uncovered additional records that contained evidence

of Smith’s school performance and results of some mental and I.Q.

testing. The records document several years when Smith had been

a student within the juvenile detention system; apparently, these

tests remained undiscovered until this late in the proceedings

because they listed Smith’s name as “Robert Lee Johnson” rather

than Robert Smith (his current alias) or Robert McBride (his

given name). Even though this evidence became available in the

punishment phase, Smith’s counsel did not reference it as a part

of his case-in-chief on the issue of sentencing.

19
 These records provide a more complete picture of Smith’s

mental development as measured by I.Q. scores and other scales

and tests of mental proficiency. In 1980, a report indicated a

Verbal I.Q. of 67, a Performance I.Q. of 64, and a Full Scale

I.Q. of 63. An evaluation form from the Harris County Department

of Education from 1982 reported a Verbal I.Q. of 57, a

Performance I.Q. of 55, and a Full Scale I.Q. of 52. This report

also characterized Smith as falling within the “[m]entally

deficient range of intellectual development.” In 1983, the Texas

Youth Counsel Child Care System placed Smith’s Verbal I.Q. at 60,

his Performance I.Q. at 72, and his Full Scale I.Q. at 64, noting

that these results put him within the “mild mental retardation”

range. School records from this time, while not containing I.Q.

values, demonstrate grades ranging from B to F in every subject

and report achievement test scores that consistently place Smith

in the 3rd-5th grade range of academic ability.

At the evidentiary hearing conducted in conjunction with the

state habeas proceedings, Mr. Parnham recalled that he hired

neither a private investigator nor a “mitigation specialist” (an

attorney who helps develop mitigation evidence in capital cases

by investigating the defendant’s history and background) to

assist him in building his case. Mr. Parnham also testified

about his trial strategy and how the I.Q. and mental deficiency

evidence played into it:

20
 What I was trying to convey to the jury in punishment was
that – a number of things, obviously: the nature of the
offense itself – although that wasn’t necessarily an
issue spoken to by Dr. Fason – but whether or not life in
the penitentiary would be appropriate punishment for
Robert – given the circumstances, given his background,
given Dr. Fason’s evaluation of Robert.

When asked whether, once he discovered potential evidence of

mental retardation in Smith’s school records, he considered

arguing mental deficiency as a source of mitigation in the

punishment phase, Mr. Parnham replied:

I’m not sure. I thought that – I would assume that I
would have made that information available to Dr. Fason.
I hope that I did. I am not a – by far not an expert in
mental diseases and/or defects. . . . But I would think
that, based on what I had done in the past and to include
present type of practice, that any information that I
would have or questions that I would have in that regard
would have been submitted to Dr. Fason and we would have
discussed it.

On cross-examination, Mr. Parnham recalled that his

impression of Smith generally was that he was “slow.” While

noting that he surely told this impression to Dr. Fason, he also

said that, “had Dr. Fason recommended [additional tests], I would

have – certainly followed up on that. That is not to say that I

was precluded from following up on those issues because Fason did

not recommend that I follow up.” As for Smith’s I.Q., Mr.

Parnham explained why he chose to make lack of intent and

inability to deliberate the touchstones of Smith’s mitigation

defense:8

8
To bolster the case for lack of intent, Mr. Parnham had
also hired as an expert a forensic pathologist, Dr. Mary

21
 Q: Do you recall that those school records indicated
that at one point – or maybe at two different
instances Mr. McBride had indicated a low I.Q.?

A: I don’t remember.

Q: What was your trial strategy at guilt innocence in
this case?

A: Bottom is his lack of intent to kill. In my
conversations with Mr. Smith and reviewing the
State’s file and factual preparation, it was
apparent to me that that was not only the best
legal approach to the representation at guilt or
innocence of Mr. Smith but also was borne out
factually by the circumstances developed during the
police investigation. And I still believe that to
this day. It may not be relevant, but I absolutely
believe that Robert Smith never intended to kill
that man.

Q: Can you tell the Court, please, what your strategy
was at – with regards to your punishment argument
in this case?

A: If my memory serves me adequately, I would have
attempted to portray Robert, based upon the guilt
or innocence evidence, as someone not deserving
appropriate answers to the questions. And I
believed that I needed to carry through the thread
of defense that we had developed in guilt or
innocence through the punishment phase. I felt
very strongly that those facts spoke very
positively as far as the lack of intent on this
man’s part and would justify the jury not answering
the questions that would result in the penalty of
death.

2. Petitioner’s Childhood Head Injury

Jumbelic, who testified that, in her opinion, Smith did not shoot
Wilcox with the intent to kill him. She based her conclusion on
the fact that Wilcox was shot in the arm, which a layperson would
not expect to result in death because the arm contains “no vital
organs.”

22
 Smith also argues that trial counsel failed to investigate

and develop the evidence that Smith had suffered a concussion as

a result of an automobile accident when he was a child. At the

punishment phase, Smith’s father recalled that “[a] truck backed

over him, backed into him and hit him beside the head. He wasn’t

ran over but backed and knocked him unconscious.” Mr. Parnham

then introduced into evidence the hospital records from Smith’s

head injury.

The medical records discuss the circumstances of the

accident, noting that, according to an eyewitness, Smith remained

unconscious for 10-15 minutes. Smith complained of a headache

throughout the evening and into the next morning, when he was

taken to a clinic for skull x-rays and other studies. Smith was

diagnosed with a “slight brain concussion” and treated with

aspirin for the pain. He attended six or seven followup visits

over the next three weeks; at no time did his condition appear to

worsen, though he still had intermittent headaches. At his final

visit, the physician noted no neurological abnormalities, a

normal X-ray, and a normal electroencephalogram (EEG). Smith was

told to continue to take aspirin for his headaches. There is no

evidence that any further treatment was ever sought or needed

following the accident.

Mr. Parnham questioned Smith’s father extensively concerning

Smith’s headaches during the weeks following the accident. On

cross-examination, the State elicited the following testimony:

23
 Q: You’re not telling this jury here, sir, that the
childhood accident that Robert had – we all have
had some childhood accidents. You’re not telling
this jury that that caused your son to go out and
commit these offense [sic] the jury has found him
guilty of?

A: No, sir.

At the state habeas evidentiary hearing, Mr. Parnham

attempted to recall how he dealt with this evidence of Smith’s

childhood head injury:

Q: Do you recall [Smith’s father] brought you a letter
from a medical clinic regarding a head injury?

A: I would – I can’t dispute that.

Q: Do you recall what, if anything, you did with that
information?

A: I do not. I would assume that I would have turned
it over to Dr. Fason, but I don’t recall that.

He also testified that he was aware that head injuries could

produce delayed reactions. While Mr. Parnham was unable to

recall much of what happened concerning the medical records

(given that the evidentiary hearing occurred nearly seven years

after Smith’s sentencing hearing), he did say that “I cannot

believe that I would not have talked to Dr. Fason” about the

medical records. Mr. Parnham did admit that he never personally

consulted with any kind of head injury specialist.

In his state habeas petition, Smith also argued that the

scant amount of medical evidence should have been buttressed by

scholarly studies indicating that childhood accidents can have

delayed effects that result in “permanent brain injury.” Smith

24
presented a spate of articles that demonstrated the potential

long-term effects of acute brain injuries. Much of the research

seeks to draw a correlation between brain injury and later

inability to control violent behavior or to employ “normal”

problem-solving strategies. While some of the studies Smith

cites had not yet been published at the time of his sentencing

hearing, other articles were available and arguably could have

been relied upon to show that a person who suffered a head injury

could develop long-term sequelae as a result.

C. Analysis of Trial Counsel’s Performance

The district court found that the state habeas court’s

conclusion that Mr. Parnham was not ineffective counsel was an

unreasonable application of the Strickland standard. We find

that the district court erred in this determination. The state

court’s determination that Smith did not receive ineffective

assistance of counsel was not contrary to, or an unreasonable

application of, clearly established federal law.

This court has previously refused to find ineffective

assistance of counsel where “trial counsel performed

appropriately, recognizing the possible issues regarding . . .

[the defendant’s] mental capacity, recognizing the need for

expert assistance in exploring these issues, and employing a

defense expert.” Dowthitt, 230 F.3d at 748 (internal citation

and quotation omitted) (emphasis and alteration in original).

25
Mr. Parnham testified repeatedly that he gave whatever

information he had concerning Smith’s background – including

school and medical records – to his expert, Dr. Fason. Dr. Fason

testified that he had been appointed by the court to evaluate

“between 1000 and 1500" defendants and that he had testified

before a jury “probably 50 times” during his long tenure as a

psychiatrist. Mr. Parnham, who admitted that he was “not an

expert in mental diseases and/or defects,” relied extensively

upon Dr. Fason’s advice as to the best way to handle Smith’s

case. For example, Mr. Parnham testified that, had Dr. Fason

recommended additional testing for Smith in the areas of mental

retardation or possible neurologic damage from the head injury,

Mr. Parnham would have seen to it that the tests were done

(remarking that the judge “did not close the purse . . . on

finances that would have been needed for Robert’s defense”).

Dr. Fason, based on the evidence, concluded that the most

appropriate diagnosis was “antisocial reaction.” Dr. Fason’s

observations of the defendant placed Smith “above the cutoff line

for mental retardation.” Smith now asks that we find Mr.

Parnham’s assistance to have been ineffective because Mr. Parnham

relied upon Dr. Fason’s findings and opinion instead of pushing

ahead with his own investigation or hiring new experts who may

have reached a different diagnosis. However, this court has

refused to find that counsel violated the Strickland standard by

failing to locate a different expert after the original expert

26
concluded that the defendant was not mentally retarded. Williams

v. Cain, 125 F.3d 269, 278 (5th Cir. 1997).

Dr. Fason had in his possession at least one set of records

that demonstrated Smith’s I.Q. to be in the 60-70 range –

certainly close enough to the line dividing mental retardation

from borderline normal intelligence to alert someone with Dr.

Fason’s experience to the potential that Smith was mentally

retarded. Dr. Fason evaluated this data within the scope of all

of the evidence, including his own impressions of Smith and his

prior experience in handling similar cases. Mr. Parnham

testified that he relied on Dr. Fason as to what steps should be

taken in building this part of the mitigation defense; Dr. Fason,

in reaching the antisocial reaction diagnosis, must have

determined that further investigation into the question of

whether Smith was mentally retarded was unnecessary. He thought

– and Mr. Parnham agreed – that the antisocial reaction diagnosis

constituted solid mitigation on both the deliberateness and

future dangerousness special issues.

Smith presents no evidence that Dr. Fason would have changed

his opinion had he been presented with additional test results

that were largely similar to those he had already used in making

his evaluation. Indeed, given Dr. Fason’s extensive experience

in this area, it is not unreasonable to conclude that he expected

that other I.Q. or other performance evaluations would be

substantially similar to the ones he had already seen. If the

27
records he already had led him to conclude that Smith was not

mentally retarded, there is no evidence that additional similar

records would have convinced him to change his mind.

The same analysis applies to the question of whether Mr.

Parnham sufficiently investigated the head injury. He turned

over Smith’s medical records from the time of the accident to his

expert witness. Dr. Fason, after evaluating the records in the

context of his impression of Smith, determined that the head

injury had likely had no long-term effects that could form the

basis for a mitigation defense. Mr. Parnham relied upon this

conclusion in determining whether to order additional

neurological examinations or imaging tests to further evaluate

the extent of Smith’s lingering injuries. While the scholarly

studies which Smith argues would have bolstered his case were

available, Mr. Parnham should not be faulted for failing to

expend the time and money necessary to find them where Dr. Fason

did not believe that they were relevant to Smith’s defense.

Counsel should be permitted to rely upon the objectively

reasonable evaluations and opinions of expert witnesses without

worrying that a reviewing court will substitute its own judgment,

with the inevitable hindsight that a bad outcome creates, and

rule that his performance was substandard for doing so. Mr.

Parnham’s actions in this case were objectively reasonable. The

state habeas court did not unreasonably apply federal law in

denying Smith’s request for relief on this ground. We reverse

28
the district court’s holding to the contrary; there is no

Strickland violation.9

V. Petitioner’s Claim that the Jury Could Not Give Weight to
His Mitigating Evidence Under the Special Issues in the
Punishment Phase

At trial, Smith’s counsel attempted to persuade the court to

include an additional special issue targeted at giving the jury

an outlet to consider Smith’s mitigating evidence specifically.

The trial court refused, choosing to go with a close variant on

what was at the time the standard jury instruction in a capital

case. The jury was given the following special issues and

“nullification” instruction:

1. Was the conduct of the defendant, Robert Smith,
that caused the death of the deceased committed
deliberately and with the reasonable expectation
that the death of the deceased or another would
result?

2. Is there a probability that the defendant, Robert
Smith, would commit criminal acts of violence that
would constitute a continuing threat to society?

3. Was the conduct of the defendant, Robert Smith, in
killing the deceased unreasonable in response to
the provocation, if any, by the deceased?

You are instructed that when you deliberate on the
questions posed in the special issues, you are to
consider all relevant mitigating circumstances, if any,
supported by the evidence presented in both phases of the
trial, whether presented by the State or the defendant.
A mitigating circumstance may include, but is not limited
to, any aspect of the Defendant’s character, background,

9
Because we find that counsel’s performance was not
objectively unreasonable, we do not need to reach the second
prong of the Strickland analysis.

29
 record, emotional instability, intelligence or
circumstances of the crime which you believe could make
a death sentence inappropriate in this case. If you find
that there are any mitigating circumstances in this case,
you must decide how much weight they deserve, if any, and
thereafter, give effect and consideration to them in
assessing the defendant’s personal culpability at the
time you answer the special issue. If 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 the personal
culpability of the defendant, a negative finding should
be given to that special issue under consideration.

On direct appeal, the Court of Criminal Appeals considered

and rejected Smith’s claim that the punishment phase jury

instructions did not give the jury the opportunity to consider

his mitigating evidence. Smith, 898 S.W.2d at 853-4. Because it

held that the nullification instruction was appropriate, it did

not reach the question of whether Smith had “proffered sufficient

evidence to raise a Penry issue.” Id. at 854 n.27.

On this issue, the state habeas court issued the following

findings of fact:

10. On direct appeal, the Court of Criminal Appeals
overruled the applicant’s points of error that the
trial court erred in overruling the applicant’s
proposed instruction concerning mitigating
evidence, in overruling his objecting to the
instruction given, and in refusing to include his
fourth special issue, holding that the Court had
previously approved of the nullification
instruction submitted in the instant case and that
the Court had held that a trial court does not err
in submitting a nullification instruction rather
than a special issue.

11. In a footnote in the direct appeal opinion, the
Court of Criminal Appeals stated that because the
applicant received a proper nullification

30
 instruction, the Court need not reach the issue of
whether the applicant proffered sufficient evidence
to raise a Penry issue sufficient to warrant an
instruction.

State Habeas Court’s Findings of Fact ¶¶ 10-11 (citation

omitted). Based on these findings, the habeas court concluded:

3. Because the applicant’s second ground for relief,
that his death sentence violates his constitutional
rights because the jury could not give effect to
the applicant’s alleged mitigating evidence, was
previously raised and rejected on direct appeal,
there is no need to reconsider the issue.

4. Additionally, the jury could give effect to the
applicant’s alleged mitigating evidence.

State Habeas Court’s Conclusions of Law ¶¶ 3-4 (citation

omitted).

The district court, finding that the state court had

considered the claim on the merits, reviewed that finding under

the AEDPA standard.10 28 U.S.C. § 2254(d) (2000). A recently

10
The state habeas court’s conclusion of law stating that
“[a]dditionally, the jury could give effect to the applicant’s
alleged mitigating evidence” qualifies as a decision on the
merits sufficient to warrant deferential AEDPA review. The Court
of Criminal Appeals based its ruling on direct appeal on its
conclusion that the nullification instruction was permissible,
whether or not Smith had presented Penry-type evidence; in fact,
that court explicitly declined to reach the Penry evidence
question. Because Penry II invalidated the nullification
instruction in cases where the defendant presents Penry evidence,
the Court of Criminal Appeals’ findings on direct appeal on this
issue are now incorrect. However, it appears that the state
habeas court, in considering Smith’s state habeas petition (which
fully presented the Penry evidence question) and in reaching its
alternate conclusion in ¶ 4, actually considered the Penry
question and determined that Smith’s evidence of mental
retardation did not qualify for a Penry instruction. The Court
of Criminal Appeals adopted that finding.

31
decided Supreme Court case, Penry v. Johnson, 532 U.S. 782 (2001)

[Penry II], had held that the nullification instruction which the

trial court had given did not permit the jury to give effect to a

defendant’s constitutionally relevant mitigating evidence;

therefore, the district court considered whether Smith had

presented such evidence to the jury. After examining each of the

types of mitigating evidence Smith presented, the court held that

Smith’s evidence of mental retardation rose to the level of Penry

I evidence.11 As a result, the district court concluded that the

state habeas court’s finding that the jury could give effect to

all of Smith’s mitigating evidence was an unreasonable

application of clearly established federal law.

Smith presented four broad categories of mitigating evidence

in the sentencing phase: (1) evidence of a childhood head injury;

(2) evidence of the circumstances of the murder; (3) evidence of

his antisocial reaction disorder; and (4) evidence of his low

I.Q. and possible mental retardation. The district court in this

case found that only the fourth category qualified as Penry

evidence. Smith has not appealed12 the district court’s

11
The district court rejected Smith’s claim that his
evidence of the circumstances of the murder and the evidence of
his antisocial reaction disorder also qualified as Penry I
evidence.
12
In his notice of appeal, Smith listed as a ground for
appeal the district court’s finding that his evidence of
antisocial reaction was not Penry evidence. However, Smith did
not brief that issue. Issues not briefed, even if raised on
appeal, are considered waived or abandoned. United States v.

32
conclusions as to the first three categories; therefore, this

court will review only the district court’s conclusion that the

state habeas court unreasonably applied federal law in refusing

to grant Smith’s request for relief on this issue.13

A. Penry I

It is well-settled that a “capital-sentencing system must

allow the sentencing authority to consider mitigating

circumstances.” Jurek v. Texas, 428 U.S. 262, 271 (1976). Jurek

directly examined the Texas capital sentencing scheme, holding

that, even though the special issues did not directly address

mitigation, the jury could satisfactorily use those special

issues to consider whatever mitigating evidence the defendant

presented. Id. at 272. The Supreme Court, in a later case,

expressly recognized that the “future dangerousness” special

issue created a sufficient opportunity for the jury to consider

mitigating evidence. Lockett v. Ohio, 438 U.S. 586, 606-07

(1978).

However, in Penry v. Lynaugh, 492 U.S. 302 (1989) [Penry I],

the Supreme Court ruled that, in certain cases, the Texas special

Reyes, 300 F.3d 555, 558 n.2 (5th Cir. 2002).
13
While Smith presents, in his Strickland claim, copious
evidence that he argues his trial counsel should have discovered
after appropriate investigation, that evidence is irrelevant for
purposes of the Penry analysis. See Boyd v. Johnson, 167 F.3d
907, 912 (5th Cir. 1999) (“A petitioner cannot base a Penry claim
on evidence that could have been but was not proffered at
trial.”).

33
issues did not permit the jury to give effect to the defendant’s

mitigating evidence. We have interpreted Penry I to say that:

[W]hen a capital defendant introduces evidence about his
background, character, or circumstances that reflects a
reduced personal culpability, and the jury cannot give
effect to the mitigating force of that evidence in
response to Texas’ special issues, the trial court must,
upon request, provide instructions that allow the jury to
consider and give mitigating effect to that evidence.

Davis v. Scott, 51 F.3d 457, 460 (5th Cir. 1995), cert. denied,

516 U.S. 992 (1995) (emphasis in original). In such a situation,

the jury instructions must include a statement that the jury

“could consider and give effect to the mitigating evidence” by

refusing to impose the death penalty as a means of expressing its

“reasoned moral response” to that evidence. Penry I, 492 U.S. at

328. Failure to include such an instruction violates the Eighth

and Fourteenth Amendments. Id.

Penry I created two separate issues that must be considered

when determining whether the defendant’s jury instruction was

constitutionally deficient. First, we must consider whether the

mitigating evidence presented during the trial was relevant

beyond the scope of the special issue questions. Only after the

petitioner has demonstrated that he presented such evidence will

we examine the supplemental mitigation instruction to determine

whether this additional instruction provided a sufficient vehicle

for the jury to weigh and give effect to the mitigating evidence.

B. Constitutionally Relevant Mitigating Evidence

34
 In attempting to refine and apply the Court’s holding in

Penry I, this court has adopted a two-part test for determining

whether a defendant’s mitigating evidence rises to the level of

Penry evidence necessitating a special instruction. We “must

determine (1) that the proffered evidence was constitutionally

relevant mitigating evidence, and, if so, (2) that the proffered

evidence was beyond the ‘effective reach’ of the jurors.” Madden

v. Collins, 18 F.3d 304, 308 (5th Cir. 1994), cert. denied, 513

U.S. 1156 (1995) (emphasis in original) (quoting Johnson v.

Texas, 509 U.S. 350, 366 (1993)). In determining whether a

defendant’s mitigating evidence is constitutionally relevant, the

question is whether “the evidence implicate[s] the basic concern

of Penry ‘that defendants who commit criminal acts that are

attributable to a disadvantaged background, or to emotional and

mental problems, may be less culpable than defendants who have no

such excuse.’” Madden, 18 F.3d at 307 (quoting Penry I, 492 U.S.

at 319).

However, merely presenting evidence that a defendant was

disadvantaged or has emotional or mental problems is not enough,

per se, to raise a Penry problem. “[T]he evidence must 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, 51 F.3d at 460-61 (quoting Graham v. Collins,

35
950 F.2d 1009, 1029 (5th Cir. 1992) (en banc))14. On the issue

of whether the defendant has a “uniquely severe permanent

handicap”, this court has limited Penry I to the facts of that

case; in other words, in all of the cases we have considered, we

have found a Penry I problem to exist only where the petitioner

presents mitigating evidence relating either to severe mental

retardation or to extreme child abuse.15

The second part of this test for proving constitutionally

relevant mitigating evidence essentially states a “nexus”

requirement. To warrant relief, the defendant must demonstrate

14
These are requirements set by Penry, as this court has
read Penry. We express no opinion on the impact, if any, of
Atkins v. Virginia, 122 S. Ct. 2242 (2002), on these
requirements.
15
In a footnote, the district court presented an extensive
list of claims that we have rejected under the Penry analysis.
These include: schizophrenia, Hernandez v. Johnson, 248 F.3d 344
(5th Cir. 2001); evidence that the petitioner was not the
triggerman, Green v. Johnson, 160 F.3d 1029, 1044 (5th Cir.
1998); youth and intoxication, Tucker v. Johnson, 115 F.3d 276,
281-82 (5th Cir. 1997); evidence of good behavior during pretrial
detention, Turner v. Johnson, 106 F.3d 1178, 1189 (5th Cir.
1997); good character, Nicols v. Scott, 69 F.3d 1255, 1267-68
(5th Cir. 1995); remorse, Briddle v. Scott, 63 F.3d 364, 377 (5th
Cir. 1995); provocation, Vuong v. Scott, 62 F.3d 673, 682 (5th
Cir. 1995); violent sexual proclivities, Davis, 51 F.3d at 460-
65; victim resistence and panic, Kinnamon v. Scott, 33 F.3d 462,
466-67 (5th Cir. 1994); “troubled childhood”, Jacobs v. Scott, 31
F.3d 1319, 1326-28 (5th Cir. 1994); low intelligence, Lackey v.
Scott, 28 F.3d 486, 489 (5th Cir. 1994); personality disorders,
Madden, 18 F.3d at 1234-37; drug use, Callins v. Collins, 998
F.2d 269, 274-76 (5th Cir. 1993); religious devotion, Jernigan v.
Collins, 980 F.2d 292, 295 (5th Cir. 1992); military service,
Black v. Collins, 962 F.2d 394, 404-05 (5th Cir. 1992); and
acceptance of responsibility, Wilkerson v. Collins, 950 F.2d
1054, 1060-62 (5th Cir. 1992).

36
that there is a nexus between the criminal act and the mitigating

evidence presented to explain it. Turner v. Johnson, 106 F.3d

1178, 1189 (5th Cir. 1997). This requirement echoes the language

of Penry I, where the Supreme Court found that Penry’s mitigating

evidence demonstrated that his criminal acts were “attributable

to” his disadvantaged background and mental problems. Penry I,

492 U.S. at 304. The nexus needs not be a perfectly direct

connection; so long as the evidence can “permit a rational jury

to ‘infer that the crime is attributable,’ at least in part, to

the defendant’s background,” the nexus requirement is met.

Russell v. Collins, 998 F.2d 1287, 1292 (5th Cir. 1993) (citing

Graham, 950 F.2d at 1033).

C. Penry II

The Supreme Court recently revisited the Texas approach to

mitigating evidence. In Penry II, the Court considered a jury

instruction very similar to the one in this case and determined

that it did not satisfy the requirements of Penry I. Penry II,

532 U.S. at 804. “Although the supplemental instruction made

mention of mitigating evidence, the mechanism it purported to

create for the jurors to give effect to that evidence was

ineffective and illogical.” Id. A juror who decided that the

mitigating evidence was sufficient to spare the defendant’s life

had no effective vehicle for expressing that conclusion. Id.

37
 Smith’s did receive essentially the same nullification

instruction that Penry did. However, that instruction alone, in

the absence of Penry I evidence, does not raise a Penry II

problem. As a result, Penry II will not even be considered as

grounds for habeas relief until Smith has demonstrated that he

presented Penry-type mitigating evidence. Therefore, we must

first examine his mitigating evidence against the Penry I

standard as this court has interpreted it.

D. Smith’s Mitigating Evidence

The evidence presented at the sentencing hearing concerning

Smith’s possible mental retardation was extensively discussed

earlier in the analysis of Smith’s Strickland claim, and thus it

will not be laid out again here. Based on that evidence, the

state habeas court, in rejecting Smith’s Penry claim, reached a

conclusion that was not contrary to, or an unreasonable

application of, clearly established federal law. The district

court erred in granting Smith’s request for relief on this issue.

A review of the facts of Penry demonstrates the vast

difference between the evidence of mental retardation presented

in that case and the evidence Smith proffered to the jury. At

the initial competency hearing, Penry’s expert psychiatrist

testified that Penry had likely suffered from organic brain

damage since birth. That expert, Dr. Brown, placed Penry’s I.Q.

between 50 and 63, in the range of mild to moderate retardation.

38
Then, during the guilt-innocence portion of the trial, Penry

called a different psychiatrist, Dr. Garcia. Dr. Garcia

testified that Penry’s organic brain damage and “moderate” mental

retardation “made it impossible for him to appreciate the

wrongfulness of his conduct or to conform his conduct to the

law.” Penry I, 492 U.S. at 307-09. Penry’s mother also

testified that Penry had been “unable to learn in school” and

hadn’t finished the first grade; his sister recalled seeing Penry

frequently beaten over the head with a belt and confined to his

room for long periods of time. Id. at 309.

The state called two psychiatric experts of its own. One of

its experts, Dr. Peeples, testified that, on two previous

occasions, he personally had diagnosed Penry as being mentally

retarded. While the state experts disagreed with the defense

over the extent of Penry’s mental illness, both state experts

acknowledged that Penry seemed incapable of learning from his

past mistakes and that his mental abilities were “extremely

limited.” Id. at 309-10.

Smith’s expert, Dr. Fason, did not testify that Smith was

mentally retarded, let alone that his mental retardation made him

unable to appreciate what he had done or learn from his mistakes.

To the contrary, Dr. Fason specifically testified that he

believed Smith was not mentally retarded:

I felt in talking with him, from the way his mental
process worked it’s true hew [sic] was a slow learner in
special education classes but I felt the way he related

39
 things to me that he was above the cutoff line for mental
retardation . . . . But I felt he was above the line but
he didn’t – to be honest with you, he doesn’t have a lot
left over or a lot extra upstairs.

Furthermore, Dr. Fason believed that the murder was “attributable

to” Smith’s antisocial reaction disorder because it prevented him

from understanding the effect that his actions had on others; the

crux of Smith’s mitigation defense was that the disease would

likely abate by the time he entered his late thirties or early

forties, thereby no longer making him a danger to society. When

Dr. Fason addressed Smith’s borderline I.Q. scores, he did so in

the context of attempting to demonstrate that Smith was unable to

act with the deliberateness required by the first special issue.

In short, the evidence on mental retardation presented

during the punishment phase tended to show three things: (1)

Smith had a low I.Q.; (2) Smith had borderline mental abilities;

and (3) Dr. Fason did not believe that Smith’s mental problems

(aside from his antisocial reaction disorder) caused him to

commit this crime. This evidence comes far from demonstrating

that Smith suffered from a “uniquely severe permanent handicap”

and that the criminal act was “attributable” to this condition.

Davis, 51 F.3d at 460.16 This court has repeatedly held that

16
Smith argues that we cannot find both no Strickland
problem and no Penry problem; if the evidence of mental
retardation presented at trial was insufficient to warrant a
Penry instruction, it is only because Mr. Parnham violated the
Strickland standard by failing to investigate and develop it.
While facially intriguing, the argument is ultimately
unpersuasive. Mr. Parnham had no reason to develop the mental

40
neither evidence of low I.Q. nor evidence of borderline

retardation is sufficient to warrant a Penry instruction. See,

e.g., Jones v. Johnson, 171 F.3d 270, 275-76 (5th Cir. 1999) (low

I.Q.); Boyd v. Johnson, 167 F.3d 907, 909-11 (5th Cir. 1999) (low

I.Q.); Harris v. Johnson, 81 F.3d 535, 539-40 (5th Cir. 1996)

(borderline retardation); Andrews v. Collins, 21 F.3d 612, 624

(5th Cir. 1994) (borderline retardation). Evidence of low I.Q.

may be properly considered by the jury in the context of either

of the first two special issues. See, e.g., Lackey v. Johnson,

28 F.3d 486, 489-90 (5th Cir. 1994) (evidence of low I.Q. goes to

question of future dangerousness); Cuevas v. Collins, 932 F.2d

1078, 1083 (5th Cir. 1991) (evidence of low I.Q. goes to question

of defendant’s ability to deliberate).

The state habeas court concluded that, because Smith failed

to present constitutionally relevant mitigating evidence at

trial, the trial court’s nullification instruction permitted the

jury to consider fully all of Smith’s mitigating evidence. The

district court erred in finding this to be an unreasonable

application of clearly established federal law. We reverse that

court’s grant of habeas relief on this issue.

retardation evidence because Dr. Fason had determined that Smith
was likely not mentally retarded. The evidence presented at
trial did not meet the Penry standard because Mr. Parnham, after
consultation with Dr. Fason, chose an alternative trial strategy
that, unfortunately for Smith, both was unsuccessful and failed
to qualify as constitutionally relevant mitigating evidence under
the Penry standard.

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VI. Petitioner’s Claims Denied by the District Court

Smith cross-appeals on four issues from the district court’s

decision to deny habeas relief and to deny a COA. We will treat

Smith’s cross-appeal as an application for a COA on these issues.

We may grant Smith’s application only if Smith “has made a

substantial showing of a constitutional right.” 28 U.S.C. §

2253(c)(2) (2000). To make this showing, Smith must demonstrate

that “reasonable jurists could debate whether (or, for that

matter, agree that) the petition should have been resolved in a

different manner or that the issues presented were adequate to

deserve encouragement to proceed further.” Dowthitt, 230 F.3d at

740 (quoting Slack v. McDaniel, 529 U.S. 473, 483-84 (2000).

Where the petitioner’s claim has been denied on procedural

grounds at the district court level, to obtain a COA he must show

both that “jurists of reason would find it debatable whether the

petition states a valid claim of the denial of a constitutional

right and that jurists of reason would find it debatable whether

the district court was correct in its procedural ruling.” Slack,

529 U.S. at 484.

Three of these issues can be considered together: Smith

argues that the trial court violated his Sixth, Eighth, and

Fourteenth Amendment rights by failing to instruct the jury

specifically that any one juror had the power to prevent the jury

from returning “yes” answers to the special verdicts. Smith also

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argues that the trial court violated his Eighth Amendment rights

by refusing to instruct the jury on the minimum amount of time

that Smith would be incarcerated if the jury opted not to impose

the death sentence.

A. The “10-12" Rule

Under Texas law, in order for a sentence of death to be

imposed, all twelve jurors must return an answer of “yes” to each

of the special issues. The jury may not return an answer of “no”

on any of the special issues unless at least ten jurors vote to

do so. This is commonly known as the “10-12 Rule.” Alexander v.

Johnson, 211 F.3d 895, 897 (5th Cir. 2000). Smith argues that

the jury should have been specifically and explicitly advised

that, should any single juror refuse to return an answer of “yes”

on any of the special issues, Smith would not be sentenced to

death.

The state habeas court dismissed this claim because Smith

failed to object to the instructions at trial. Texas law

mandates that the “failure to object to a jury instruction

precludes appellate review of a claimed defect in the charge.”

Fierro v. Lynaugh, 879 F.2d 1276, 1281 (5th Cir. 1989). This

court has consistently held that this rule requiring

contemporaneous objections constitutes an adequate and

independent state ground sufficient to create a procedural bar

for federal habeas review of the petitioner’s claim. Fisher v.

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State, 169 F.3d 295, 300 (5th Cir. 1999). However, because the

state habeas court also made statements concerning the merits of

this claim, the district court concluded that it was unclear

whether the state court relied on the Texas contemporaneous

objection rule as an adequate and independent state ground for

denying relief. Therefore, the district court considered and

rejected Smith’s claim on the merits.

The Supreme Court, though, has previously held that state

courts may both rely on state procedural grounds and reach

federal substantive questions in denying habeas relief without

violating the principle that their decision must rest on adequate

and independent state grounds. Harris v. Reed, 489 U.S. 255, 263

(1989). So long as the “last state court rendering a judgment in

the case ‘clearly and expressly’ states that its judgment rests

on a state procedural bar,” we can conclude that the state court

rested its decision independently on the state procedural

grounds. Id. (quoting Caldwell v. Mississippi, 472 U.S. 320, 327

(1985)).

We conclude that the state habeas court’s decision that

Smith’s claim was procedurally barred by the contemporaneous

objection rule “clearly and expressly” rests on adequate and

independent state procedural grounds. There is no need for us to

reach the merits of his claim. As Smith has failed to make a

substantial showing of the denial of a constitutional right, we

decline his request for a COA on this issue.

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 2. Minimum Time of Incarceration

Smith also argues that the trial court violated his Eighth

Amendment rights by refusing to instruct the jury as to the

minimum amount of time that he would remain incarcerated should

the jury decide not to impose a death sentence. More

specifically, Smith argues that “evolving standards of decency”

should guide this court to change existing precedent.

The state argues that Smith’s claim is unexhausted and

procedurally barred because he failed to allege an “evolving

standards of decency” claim in his state court appeals and

because he failed to provide any factual basis for such a claim

when he raised it in his federal petition. We agree. “Normally,

the exhaustion requirement is not satisfied if a petitioner

presents new legal theories or entirely new factual claims in his

petition to the federal court.” Vela v. Estelle, 708 F.2d 954,

958 (5th Cir. 1983), cert. denied, 464 U.S. 1053 (1984). This

claim is unexhausted and thus procedurally barred.

However, even where a claim is unexhausted and procedurally

barred, we may deny the claim on the merits. 28 U.S.C. §

2254(b)(2) (2000). The district court examined Smith’s arguments

and determined that, on the merits, he was not entitled to habeas

relief. We review the district court’s conclusions of law de

novo. Nobles v. Johnson, 127 F.3d 409, 423 (5th Cir. 1997). The

district court’s reasoning is sound, and Smith presents no new

45
evidence or case law on this appeal to call that decision into

question. Smith has not demonstrated that this finding would be

debatable among jurists of reason, nor has he made a substantial

showing of the denial of a constitutional right. Therefore, we

decline Smith’s request for a COA.

VII. Petitioner’s Claim for Relief Based on the Supreme
Court Decision in Atkins v. Virginia

Smith raises one final claim for the first time on this

appeal. In Atkins v. Virginia, 122 S. Ct. 2242 (2002), the

Supreme Court held that executions of mentally retarded criminals

violated the Eighth Amendment prohibition against cruel and

unusual punishment. Smith argues that, because the jury reached

a general verdict on the special issue concerning future

dangerousness, “it is impossible to know from that verdict

whether one or more jurors found that Petitioner had an I.Q.

under 75 and had additional functional disabilities, such that

the Petitioner qualified as being retarded for Eighth Amendment

purposes, but nevertheless found him to pose a future danger.”

Both sides concede that Smith is raising this claim for the

first time. We have consistently refused to address issues in

the habeas context raised for the first time on appeal. See,

e.g., Johnson v. Puckett, 176 F.3d 809, 814 (5th Cir. 1999) (“[A]

contention not raised by a habeas petitioner in the district

court cannot be considered for the first time on appeal from that

court’s denial of habeas relief.”) (citation omitted).

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Furthermore, unlike Smith’s Eighth Amendment claim discussed

earlier, there is no clear precedent upon which we could rely in

simply deciding the case on the merits. The Atkins Court stated

that it would “leave to the States the task” of developing

standards to determine and define who is ineligible for capital

punishment on the basis of mental retardation. Atkins, 122 S.Ct.

at 2250. As the Texas courts have not yet had that opportunity,

we decline to usurp their position as the ultimate arbiter of

state law. We decline to consider Smith’s unexhausted claim for

habeas relief based upon Atkins.

VIII. Conclusion

For the reasons stated above, we REVERSE the district court

insofar as it granted habeas relief to the petitioner on his

claims that he received ineffective assistance of counsel during

the sentencing phase and that he was entitled to a Penry

mitigation instruction. In addition, we decline to grant Smith’s

request for a COA on petitioner’s other issues. Finally, we

decline to consider Smith’s Atkins claim.

47