Coble v. Quarterman

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
July 18, 2005
FIFTH CIRCUIT
Charles R. Fulbruge III
____________ Clerk
No. 01-50010
____________

BILLIE WAYNE COBLE,

Petitioner-Appellant,

versus

DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,

Respondent-Appellee.

Appeal from the United States District Court
For the Western District of Texas

Before JOLLY, GARZA, and STEWART, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Petitioner, Billie Wayne Coble (“Coble”), was convicted of capital murder in the state court

of Texas and sentenced to death. Based on a Certificate of Appealability (“COA”) on two issues, one

granted by the district court and one by this court, Coble appeals the district court’s denial of federal

habeas relief. We AFFIRM the district court’s judgment.

I

Coble was convicted of the capital murders of his brother-in-law, father-in-law, and mother-
in-law. The facts of Coble’s crimes are set forth in the opinion of the Texas Court of Criminal

Appeals (“TCCA”) disposing of Coble’s direct appeal.

Coble was having marital problems and separated from his wife, Karen Vicha, not long before

the murders. Coble kidnaped Karen Vicha at knife-point. He attempted to convince her not to

divorce him, but eventually released her unharmed. Coble v. State, 871 S.W.2d 192, 195-96 (Tex.

Crim. App. 1993) (en banc). Several weeks later, Coble was seen driving around the area where

Karen Vicha and her parents lived. Id. at 196. That afternoon, he was waiting at his wife’s house

when her daughters returned from school. Coble handcuffed and tied up her three children and one

of their cousins. Id. Next, Coble cut the phone lines to the house and went down the street to the

house of his brother-in-law, Bobby Vicha. Coble and Bobby Vicha struggled, and Coble ultimately

shot Bobby Vicha in the neck. Id. at 196-97 & n.6. He returned to Karen Vicha’s house for a period

of time and then went across the street to the Vicha family home. Coble fatally shot Karen Vicha’s

parents, Zelda Vicha and Robert Vicha. He cut t he phone lines to the Vicha family home as well.

Id. at 196-97.

When Karen Vicha arrived home from work, Coble was waiting for her. Id. at 197. He

admitted to killing her parents and brother and told her that Bobby Vicha had shot him. He then

handcuffed her and drove her out to a rural area in her car. Karen Vicha later testified that Coble

assaulted her during the drive. Coble was eventually apprehended after a brief high-speed pursuit,

which ended when Coble crashed into a parked car. At the hospital where Coble and Karen Vicha

were taken for treatment, Coble spontaneously told various hospital personnel and police officers that

he had killed three people. Id.

Coble was subsequently convicted of capital murder. At the close of the penalty phase

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evidence, the jury answered the special issues in the affirmative and the judge sentenced Coble to

death. His direct appeal was affirmed by the TCCA, and the Supreme Court denied his petition for

a writ of certiorari. Id. at 208, cert. denied, Coble v. Texas, 513 U.S. 829 (1994).

Coble filed an application for a state writ of habeas corpus, alleging twenty-six claims for

relief. The trial court held an evidentiary hearing on five of these claims, but recommended that relief

be denied. The TCCA agreed, adopted the trial court’s findings of fact and conclusions of law, and

denied relief in an unpublished order. Ex parte Coble, No. 39,707-01 (Tex. Crim. App. 1999).

Coble then applied for federal habeas relief, and the district court appointed counsel. Coble

filed his habeas petition, alleging twenty-five claims, and the district court stayed his execution

pending resolution of the petition. The district court denied Coble’s request for an evidentiary

hearing and denied the writ. The district court did, however, grant COA on the issue of ineffective

assistance of counsel. Coble then petitioned for COA from this court on eleven additional grounds.

We granted COA on the issue of whether the “special issue” interrogatories in the Texas capital

sentencing instruction precluded effective consideration of Coble’s mitigating evidence in violation

of the mandates of Penry v. Lynaugh, 492 U.S. 302 (1989) (“Penry I”), and Penry v. Johnson, 532

U.S. 782 (2001) (“Penry II”). Coble v. Cockrell, 80 Fed. Appx. 301 (5th Cir. 2003).

II

“In a habeas corpus appeal, we review the district court’s findings of fact for clear error and

review its conclusions of law de novo, applying the same standard of review to the state court’s

decision as the district court.” Thompson v. Cain, 161 F.3d 802, 805 (5th Cir. 1998). Because Coble

filed his federal habeas petition after t he effective date of the Antiterrorism and Effective Death

Penalty Act of 1996 (“AEDPA”), the district court’s federal habeas review was governed by AEDPA.

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 Under AEDPA, habeas relief is not available to a state prisoner

with respect to any claim that was adjudicated on the merits in State
court proceedings 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). A state court decision is “contrary to . . . clearly established Federal law, as

determined by the Supreme Court” if: (1) “the state court applies a rule that contradicts the governing

law set forth in [the Supreme Court’s] cases,” or (2) “the state court confronts a set of facts that are

materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result

different from [Supreme Court] precedent.” Williams v. Taylor, 529 U.S. 362, 406 (2000). A state

court decision is an unreasonable application of clearly established Supreme Court precedent if the

state court “correctly identifies the governing legal rule but applies it unreasonably to the facts of a

particular prisoner’s case.” Id. at 407-08. The inquiry into unreasonableness is objective. Id. at

409-10. A state court’s incorrect application of clearly established Supreme Court precedent is not

enough to warrant federal habeas relief; in addition, such an application must also be unreasonable.

Id. at 410-12. The state court’s factual findings are presumed to be correct, and the habeas petitioner

has the burden of rebutting that presumption by clear and convincing evidence. 28 U.S.C. §

2254(e)(1).

III

Coble makes multiple ineffective assistance of counsel arguments. These claims are governed

by the familiar standards of Strickland v. Washington, 466 U.S. 668 (1984). Coble must establish:

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(1) “that counsel’s representation fell below an objective standard of reasonableness” and (2) that the

deficient representation caused prejudice, which requires a showing that there is a “reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been

different.” Williams, 529 U.S. at 390-91 (quoting Strickland, 466 U.S. at 688, 694). Our scrutiny

of counsel’s performance is “highly deferential” and there is a “strong presumption” that any alleged

deficiency “falls within the wide range of reasonable professional assistance.” Strickland, 466 U.S.

at 689.

Coble claims trial counsel did not adequately prepare for the sentencing phase of trial because

they failed to interview and prepare the witnesses who testified at trial. In the cases cited by Coble,

trial counsel failed to conduct any investigation of witnesses who might have provided alibis or who

were eyewitnesses. See, e.g., Bryant v. Scott, 28 F.3d 1411, 1418 (5th Cir. 1994) (“[Counsel’s]

complete failure to investigate alibi witnesses fell below the standard of a reasonably competent

attorney practicing under prevailing professional norms.”). See also Rompilla v. Beard, 125 S.Ct.

2456 (2005) (counsel provided ineffective assistance by failing to examine a file on defendant’s prior

convictions at sentencing phase of capital murder trial despite knowing the state’s strategy was to

emphasize defendant’s violent character). In this case, Coble concedes that trial counsel’s

professional investigator interviewed all of the witnesses prior to their testimony. Furthermore, even

assuming counsel failed to fully prepare these witnesses, Coble only argues that these witnesses would

have been “more effective” if they had been better prepared, which does not come close to suggesting

that “but for counsel’s errors, the result of the proceeding would have been different.” Coble also

alleges that trial counsel failed to call favorable witnesses to testify. “Complaints of uncalled

witnesses are not favored, because the presentation of testimonial evidence is a matter of trial strategy

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and because allegations of what a witness would have testified are largely speculative.” Boyd v.

Estelle, 661 F.2d 388, 390 (5th Cir. 1981) (quoting Buckelew v. United States, 575 F.2d 515, 521

(5th Cir. 1978)). Coble has not established what information these witnesses would have provided.

Based on what can be gleaned from his briefs, these witnesses would have presented testimony

already provided by other witnesses.1 Counsel’s decision not to present cumulative testimony does

not constitute ineffective assistance. Murray v. Maggio, 736 F.2d 279, 282 (5th Cir. 1984). Finally,

Coble alleges that counsel was ineffective because they only conducted two interviews of him while

he was awaiting trial in prison. There is no support for this assertion in the record. Sheila Thun, a

deputy of the Sheriff’s office who worked in the jail and was responsible for keeping jail records,

testified that attorney visitations are not recorded in the same manner as lay visitations. Attorneys

were simply required to sign a card that was subsequently destroyed. Coble’s trial counsel, Hoagie

Karels, also testified that it was not unusual for him to see a client in jail without signing in and that

jail visitation records indicating no visits to Coble would be inaccurate. Karels testified that jail-based

meetings with Coble occurred whenever necessary and that meetings were also conducted in the

courtroom. Based on the information before the state habeas court, its denial of habeas relief was

not objectively unreasonable.

Coble also argues that trial counsel failed to present a coherent theory regarding mitigation

evidence in order to persuade the jury to answer “no” to the second special issue question.2 Coble

1
Coble argues that these uncalled witnesses would have testified regarding Coble’s difficult
upbringing, his mother’s psychiatric problems, his stay in a state home, his Vietnam experiences, and
his positive performance as a father and worker. Coble’s sentencing witnesses testified about these
issues.
2
In order to sentence a convicted defendant to the death penalty, Texas law requires juries to
affirmatively answer two special issues. In this case, the second special issue given at Coble’s

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argues that counsel’s closing argument was ineffective, counsel ineffectively cross-examined the

State’s expert on the point of future dangerousness, and counsel should have presented a statistical

theory related to whether Coble, as an older man with an extended prison term, represented a

continuing threat. Many of the factors that make up this “coherent theory” were presented at trial.

For example, counsel presented experts who testified that Coble’s actions were impulsive, that he

suffered from psychiatric problems, and that he would likely not be a repeat offender. In addition,

witnesses testified that Coble had a difficult childhood, tragic experiences in Vietnam, but was a

devoted father, a diligent worker, and that he contributed to his community. Indeed, counsel

presented a coherent theory to support a life sentence: Coble committed a crime of passion, one

which he likely would not repeat. At its base, Coble’s current challenge is to the strategy employed

by trial counsel. Such a challenge does not establish ineffective assistance. See Yarborough v.

Gentry, 540 U.S. 1, 5-6 (2003) (“[C]o unsel has wide latitude in deciding how best to represent a

client, and deference to counsel’s tactical decisions in his closing presentation is particularly important

because o f the broad range of legitimate defense strategy at that stage. . . . Judicial review of a

defense attorney’s summation is therefore highly deferential))and doubly deferential when it is

conducted through the lens of federal habeas.”). Coble’s indictment of trial counsel’s cross-

examination of the State’s expert is equally meritless. Coble presented experts who testified that

Coble would not be a threat and he challenged the State’s expert on recidivism of “passion killers.”

Coble’s desire to have a specific defense theory presented does not amount to ineffective assistance

on federal habeas review. Johnson v. Cockrell, 301 F.3d 234, 239 (5th Cir. 2002) (quoting

sentencing was “Is there a reasonable probability that the Defendant, Billie Wayne Coble, will commit
criminal acts of violence that would constitute a continuing threat to society?”

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Strickland, 466 U.S. at 689) (“[C]ourts must ‘indulge a strong presumption that counsel’s conduct

falls within the wide range of reasonable professional assistance.’”). We cannot say that the state

habeas court’s decision was objectively unreasonable.

Coble contends next that trial counsel rendered ineffective assistance during the

guilt/innocence phase of the trial by failing to construct a viable insanity or diminished capacity

defense. Coble argues that evidence of his mental state, which was extensively developed at

sentencing, should have instead been presented at the guilt/innocence phase of trial. In this case, the

trial court denied a defense request for an insanity instruction. Trial counsel testified before the state

habeas court that the possibility of an insanity defense was investigated. Trial counsel also testified

that no expert would support the insanity defense. Coble offered no evidence to the state habeas

court that he was insane at the time of the murders. Trial counsel investigated the possibility of

presenting an insanity defense and opted to hold the evidence until the sentencing phase of trial.

Thus, counsel was not ineffective for failing to present an insanity defense at the guilt/innocent phase

of trial since no experts would support the defense. See Wheat v. Johnson, 238 F.3d 357, 363 (5th

Cir. 2001); Crane v. Johnson, 178 F.3d 309, 313-14 (5th Cir. 1999); Williams v. Cain, 125 F.3d 269,

278-79 (5th Cir. 1997) (“failure to present . . . evidence would not constitute ‘deficient’ performance

within the meaning of Strickland if . . . [counsel] could have concluded, for tactical reasons, that

attempting to present such evidence would be unwise.”). In addition, counsel was not ineffective for

failing to present a diminished capacity defense because diminished capacity is not cognizable in

Texas. See, e.g., Jackson v. State, 115 S.W.3d 326, 328 (Tex. App. )) Dallas 2003). We cannot

say that the state habeas court’s decision was objectively unreasonable.

Coble also asserts that trial counsel provided ineffective assistance for failing to object to the

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prosecutor’s improper comments during closing arguments. The prosecutor described Coble as “a

cold-blooded, merciless, remorseless killer” and Coble argues that “remorseless” refers to Coble’s

failure to testify at trial. However, the prosecutor never referenced Coble’s failure to testify and there

was evidence presented at trial that, immediately following the murders, Coble made comments that

indicated his lack of remorse. Without some indication that the prosecutor was referring to Coble’s

failure to testify, rather than Coble’s comments indicating a lack of remorse, this argument is

meritless. See Rivera v. Collins, 934 F.2d 658, 661 (5th Cir. 1991) (“A statement by a district

attorney is not manifestly intended to comment on the defendant’s silence when there is another

plausible explanation.”). We cannot say that the state habeas court’s decision was objectively

unreasonable.

Coble contends next that he received ineffective assistance of counsel because his trial counsel

allowed a defense expert, Dr. Stephen Mark, to testify that Coble would likely be a danger in the

future unless he was medicated. Dr. Mark, a psychiatrist, testifed at trial that he examined Coble on

more than one occasion and found that he was a violent and suicidal person due to the depression

caused by his post-traumatic stress disorder and bipolar disorder. In his testimony, Dr. Mark stated

that Coble’s psychiatric disorders and his unique history of separation from his mother and previous

wives caused a total loss of control. Dr. Mark did admit that timely hospitalization and treatment

with mood-stabilizing drugs could have prevented the murders and that Coble’s psychiatric disorders

could be controlled by medication. Coble points to evidence presented to the state habeas court that

indicated his attorneys and expert disagreed over whether the expert informed the attorneys prior to

trial regarding his opinion of Coble’s future dangerousness. According to the affidavits of Coble’s

counsel, Ken Ables and Hoagie Karels, they believed that Dr. Mark would testify at trial that Coble

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would not be a future danger. Ables and Karels acknowledged that they were surprised by Dr.

Mark’s trial testimony and that the defense would not have called him as a witness had they known

what Dr. Mark’s testimony would be on the stand. Coble points to Dr. Mark’s affidavit in the state

habeas hearing that asserts he discussed the case with Ables on at least six occasions. Dr. Mark

remarked that the attorneys should not have been surprised by his testimony that Coble might be a

future danger if left untreated, therefore making his testimony more favorable to the prosecution.

Coble argues that the presentation of this unfavorable expert testimony negated the effectiveness of

his defense. The state habeas court concluded that “at most there was a mis-communication

concerning the content of [Dr. Mark’s] testimony, or a mis-comprehension of the substance of his

testimony as it pertained to the issue of future dangerousness and mitigation.” The state habeas court

was thus presented with two conflicting stories regarding the communication between Coble’s

counsel and Dr. Mark. The court believed Coble’s counsel that they expected Dr. Mark to testify

favorably for their client, not that they submitted the expert despite being aware of the damaging

nature of his testimony. Therefore, the state habeas court concluded that counsel’s performance was

not ineffective. While the wisdom of trial counsel’s decision to submit the expert is debatable, the

state court’s denial of habeas relief was not unreasonable. See Emery v. Johnson, 139 F.3d 191, 197

(5th Cir. 1997) (“The Sixth Amendment does not guarantee criminal defendants the right to error-free

representation.”).

Furthermore, even assuming that trial counsel’s performance fell below an objective standard

of reasonableness, Coble does not establish that the result of the proceedings would have been

different, as the habeas court also found that there was no prejudice. First, Dr. Mark’s expert

testimony was not that Coble was absolutely a future danger, but rather that, left untreated, he was

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a future danger. Second, other evidence suggested that Coble would be a future danger, including

the State’s expert who testified that Coble constituted a future danger, the horrific nature of the

murders, and testimony that Coble was aggressive and violent towards women in the years before the

murders. See Little v. Johnson, 162 F.3d 855, 860-61 (5th Cir. 1998) (“Deficient performance is

prejudicial only upon a showing that but for counsel’s errors, there is a reasonable probability that

the ultimate result would have been different and that confidence in the reliability of the verdict is

undermined.”). Accordingly, we find the state habeas court’s decision objectively reasonable.

Coble also argues trial counsel was ineffective for admitting into evidence psychiatric reports

at the penalty phase which suggested he was a future danger.3 Coble asserts that trial counsel could

have prevented any State attempt to introduce these exhibits because they violated the Confrontation

Clause of the Sixth Amendment. However, each of the exhibits that trial counsel introduced satisfied

an exception to the hearsay rule,4 and thus met the requirements of the Confrontation Clause. See

Lilly v. Virginia, 527 U.S. 116, 124-25 (1999) (hearsay evidence does not offend the Confrontation

Clause where the evidence falls within a firmly rooted hearsay exception); White v. Illinois, 502 U.S.

346, 356 (1992). Although the Supreme Court in Crawford v. Washington, 541 U.S. 36, 68-69

(2004), held that “[w]here testimonial statements are at issue, the only indicium of reliability sufficient

to satisfy constitutional demands is . . . co nfrontation,” none of the exhibits submitted during the

3
The four exhibits included: (1) a psychiatric report on Coble prepared by Dr. Ralph Hodges,
dated May 6, 1964, when Coble was 15 years old; (2) a Veteran’s Administration report of a medical
examination on Coble by a neuropsychiatrist performed in 1970; (3) a Veteran’s Administration rating
decision relating to Coble dated February 20, 1970; and (4) a clinical narrative relating to Coble dated
Novermber 22, 1967.
4
See TEX. R. EVID. 803(4) (statements made for purposes of medical diagnosis or treatment);
TEX. R. EVID. 803(6) (records of regularly conducted activity); and TEX. R. EVID. 803(16)
(authenticated documents over 20 years old).

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penalty phase of trial that Coble contests were testimonial statements, as discussed in Crawford. 541

U.S. at 51-53. Trial counsel’s decision to admit these damaging documents before the State was able

to introduce them, and soften their potential damage, is a reasonable trial strategy and will not be

second guessed. See Yohey v. Collins, 985 F.2d 222, 228 (5th Cir. 1993) (“Given the almost infinite

variety of possible trial techniques and tactics available to counsel, this Circuit is careful not to second

guess legitimate strategic choices.”). Therefore the state habeas court’s finding regarding this claim

was objectively reasonable.

Coble asserts next that trial counsel was ineffective for admitting a 1964 psychiatric report

from a doctor’s consultation with Coble when he resided at a state home at the age of fifteen. In the

report, Coble admitted to several illegal actions. These extraneous offenses were then presented to

the jury when the report was introduced as evidence by trial counsel. Coble contends that the state

report violated his Fifth Amendment right to self-incrimination at the time it was taken and that the

admission of the report at the penalty phase of his capital murder trial violated his Fifth and Sixth

Amendment rights, as articulated in Estelle v. Smith, 451 U.S. 454, 462-63 (1981). The Supreme

Court held in Estelle v. Smith that the state’s use, during the penalty phase of a capital trial, of the

testimony of a psychiatrist who performed a court-ordered competency examination on the defendant,

violated the defendant ’s Fifth Amendment right since the defendant was not warned that the

statements could be used during the penalty phase. We considered and rejected these underlying

claims in Coble’s COA application. We found the district court’s analysis persuasive, as well as

finding that any Estelle v. Smith violation was harmless. Coble v. Cockrell, 80 Fed.Appx 301, 312

(5th Cir. 2003). In addition, Coble’s claim that the report violated his Fifth Amendment rights in

1964 is meritless because the psychiatric consultation was not a custodial interrogation. See Miranda

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v. Arizona, 384 U.S. 436 (1966) (conditioning the admissibility at trial of any custodial confession

on warning a suspect of his rights). Coble’s statements were simply for the purpose of medical and

psychiatric diagnosis. Unlike the defendant in Estelle v. Smith, Coble was not “faced with a phase

of the adversary system,” but was “in the presence of [a] perso[n] acting solely in his interest.”

Estelle, 451 U.S. 467-69. Therefore, the report did not violate his Fifth Amendment right. In

addition, our precedent holds that “[i]f a defendant requests an examination on the issue of future

dangerousness or presents psychiatric evidence at trial, the defendant may be deemed to have waived

the fifth amendment privilege.” Vanderbilt v. Collins, 994 F.2d 189, 196 (5th Cir. 1993). In this

case, Coble’s trial counsel made a strategic decision to admit the 1964 report, before the prosecution,

to soften the blow in the minds of the jury. Coble does not establish that the state habeas court’s

resolution of these claims was objectively unreasonable.

Coble claims that cumulative error merits habeas relief. Federal habeas relief is only available

for cumulative errors that are of a constitutional dimension. Livingston v. Johnson, 107 F.3d 297,

309 (5th Cir. 1997); Yohey, 985 F.2d at 229. As previously discussed, none of Coble’s ineffective

assistance claims establish ineffective assistance under Strickland. Coble has not identified errors of

constitutional dimension. Accordingly, we cannot say that the state habeas court’s rejection of

Coble’s cumulative error claim was objectively unreasonable.

Coble argues that the facts in his case are indistinguishable from the facts in Williams v.

Taylor, 529 U.S. 362 (2000), which held that petitioner was denied effective assistance of counsel

when his attorneys failed to investigate and present substantial mitigating evidence during the

sentencing phase of his capital murder trial. However, there are clear differences between the

performance of Coble’s counsel at trial and the performance of Williams’ counsel. In Williams,

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counsel only prepared for the guilt phase a week before trial, failed to investigate mitigating evidence,

failed to introduce evidence that Williams was “borderline mentally retarded,” failed to investigate

positive evidence regarding Williams’ trustworthiness, and failed to contact a favorable witness. Id.

at 396. The mitigation evidence that Williams’ counsel presented was weak, consisting only of the

testimony of three relatives who stated that Williams was “a nice boy,” and the tape recorded

statement of a psychiatrist. Id. at 369. Coble’s counsel produced a significant number of witnesses

who testified regarding his background. These witnesses testified regarding Coble’s mother’s

psychiatric disorders, his time in a state home, his experience in Vietnam, his marriage difficulties, and

positive factors related to his work and his children. Counsel also presented two psychiatric expert

witnesses who discussed Coble’s mental history. Coble concedes there was some investigation of his

background, but argues there should have been more. Coble offers no explanation of what mitigating

evidence further investigation might have revealed. Coble asserts that his trial counsel failed to call

witnesses, but he does not explain what these witnesses would have offered distinct from the

mitigation evidence that was presented. Coble’s case is easily distinguishable from Williams’ where

trial counsel failed to uncover and present evidence relating to Williams’ “nightmarish childhood” and

that he was “borderline mentally retarded.” Williams, 529 U.S. at 395-96. The state habeas decision

was not contrary to or an unreasonable application of Williams.

Similarly, Coble contends that the state court’s denial of habeas relief was contrary to clearly

established federal law because the set of facts in Coble’s case is materially indistinguishable from

those in Wiggins v. Smith, 539 U.S. 510 (2003), where the Court determined that counsel was

ineffective in not investigating petitioner’s life history for mitigating evidence beyond the presentence

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investigation report and the department of social services records.5 Despite Coble’s protests to the

contrary, the facts in Wiggins are clearly distinguishable from the facts in the instant case. The

Wiggins Court stressed that “[d]uring the proceedings themselves . . . counsel introduced no evidence

of Wiggins’ life history.” 539 U.S. at 515. The failure to present this evidence was compounded by

the fact that Wiggins’ counsel failed to investigate Wiggins’ background and never attempted to

compile his social history. Id. at 523 (“[W]e focus on whether the investigation supporting counsel’s

decision not to introduce mitigating evidence of Wiggins’ background was itself reasonable.”)

(emphasis in original). Unlike in Wiggins, Coble’s attorneys not only investigated his background,

they also offered a mitigation case. In Wiggins, the Supreme Court found ineffective assistance of

counsel because it was unreasonable to make the decision not to investigate. Here, there is no

question that Coble’s attorneys investigated his background. At most, Coble is challenging the

strategy employed by trial counsel, arguing that witnesses should have been better prepared and that

more witnesses should have been proffered. Coble’s challenge is measurably distinct from the failure

to investigate social history in Wiggins.6

In sum, Coble’s attempts to analogize Williams and Wiggins fail because counsel is not

required to “investigate every conceivable line of mitigating evidence no matter how unlikely the

5
Coble did not set forth his Wiggins argument until his reply brief. However, it is
understandable that Coble did not address Wiggins in earlier briefing before us or the district court
because the Supreme Court had not yet issued the opinion. Wiggins properly applies to the state
court’s resolution of Coble’s ineffective assistance claims because that decision was not “new law,”
but rather an application of Strickland. See Hamblin v. Mitchell, 354 F.3d 482, 487 (6th Cir. 2003).
6
In addition, Wiggins’ unresearched background was appalling. Wiggins’ background
involved “physical torment, sexual molestation, [ ] repeated rape[,]” a period of homelessness, and
diminished mental capacities. Wiggins, 539 U.S. at 535. Coble is unable to describe any mitigation
evidence that was available, but not investigated.

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effort would be to assist the defendant at sentencing.” Wiggins, 539 U.S. at 533.

We also recognize the Supreme Court’s recent decision in Rompilla v. Beard, in which the

Court held “that even when a capital defendant’s family members and the defendant himself have

suggested that no mitigating evidence is available, his lawyer is bound to make reasonable efforts to

obtain and review material that counsel knows the prosecution will probably rely on as evidence of

aggravation at the sentencing phase of trial.” 125 S.Ct. 2456, 2460 (2005). Counsel for Rompilla

knew the prosecution’s sentencing strategy))emphasizing his violent character by introducing past

felony convictions involving the use or threat of violence))yet, counsel failed to make reasonable

efforts to obtain mitigation evidence, or even examine the file on Rompilla’s prior convictions. As

discussed supra, Coble fails to demonstrate what additional mitigating evidence further investigation

by his counsel might have revealed. The Court even distinguished the type of argument presented

by Coble from that made by Rompilla, stating that “[q]uestioning a few more family members and

searching for old records can promise less than looking for a needle in a haystack, when a lawyer truly

has reason to doubt that there is any needle there. But looking at a file the prosecution says it will

use is a sure bet: whatever may be in that file is going to tell defense counsel something about what

the prosecution can produce.” Id. at 2467. Coble simply argues that his counsel should have called

additional witnesses that would have testified regarding the same issues already discussed by other

witnesses. The efforts of Coble’s counsel are easily distinguishable from counsel’s performance in

Rompilla.

IV

Coble argues that the jury instructions, specifically the Texas “special issue” interrogatories,

submitted during the punishment phase of his capital murder trial, deprived the jury of an effective

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vehicle to consider mitigating evidence in violation of the mandate in Penry I and Penry II, thus

violating the Sixth, Eighth, and Fourteenth Amendments. Under the version of the Texas statute in

force when Coble was tried, to impose a capital sentence, the jury had to answer two questions in the

affirmative. The first special issue interrogatory addressed whether the defendant had acted

“deliberately and with the reasonable expectation that the death of the deceaseds or another would

result.” The second special issue question instructed the jury to consider “whether there is a

probability that the defendant would commit criminal acts of violence that would constitute a

continuing threat to society.”7

Coble’s trial was held between the Supreme Court’s decisions in Penry I and Penry II. In

Penry I, the Court held that the first two “special issue” interrogatories in the Texas capital

sentencing instructions, though facially valid, failed to satisfy the constitutional requirement that a

capital defendant be able to present and have the jury fairly consider mitigating evidence in certain

situations. 492 U.S. at 315, 328. After Penry I, Texas trial courts still gave the special issue

interrogatories to the jury, but added a supplemental instruction to “cure” any possible Penry defect.

Eventually, the Texas legislature adjusted the special issues to add a mitigating evidence question.

See Robertson v. Cockrell, 325 F.3d 243, 248-49 & n.4 (5th Cir. 2003) (en banc) (describing the

background of the period between Penry I and Penry II and detailing the new special issue). Coble’s

jury, however, received the interim supplemental instruction, as did Penry’s jury when his case was

retried.

7
The special issues are set out in TEX. CRIM. PROC. CODE art. 37.071. The third special issue,
which is not relevant to the Penry I/Penry II analysis, addresses whether the defendant’s conduct was
a reasonable response to the provocation, if any, of the victim. TEX. CRIM. PROC. CODE art.
37.071(b)(1)-(3) (Vernon 1981). The third special issue was not submitted to the jury despite the
objections of Coble’s trial counsel.

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 Penry was retried and again found guilty of capital murder and sentenced to death. In Penry

II, the Supreme Court considered a constitutional challenge from Penry on whether the jury

instructions at Penry’s resentencing complied with its mandate in Penry I. The Court considered the

supplemental instruction given at Penry’s subsequent retrial,8 and held that the instruction provided

“an inadequate vehicle for the jury to make a reasoned moral response to Penry’s mitigating

evidence.” Penry II, 532 U.S. at 800. Specifically, the Court held that the supplemental instruction

potentially created an unacceptable dilemma for the jurors because it instructed the jurors to change

one of their truthful “yes” special issue answers to a “no” if they felt the defendant did not deserve

the death penalty. Thus, the instructions left the jurors with the choice of either not giving effect to

Penry’s proffered mitigation evidence or, alternatively, violating their oath as jurors to render a true

8
In its opinion, the Court restated the instruction:

You are instructed that when you deliberate on the questions posed
in the special issues, you are to consider 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 and record 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 therefore, 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 one of the special issues.

Penry II, 532 U.S. at 789-90.

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verdict.9 Id. at 798-801. Coble received a virtually identical supplemental instruction at his trial as

that given at Penry’s trial.10

“The Supreme Court’s rulings in Penry II and Smith should not be read to disturb its earlier

holdings affirming the constitutionality of Texas’ statutory death penalty sentencing scheme.” Bigby

v. Dretke, 402 F.3d 551, 570 (5th Cir. 2005) (citing Jurek v. Texas, 428 U.S. 262 (1976); Franklin

v. Lynaugh, 487 U.S. 164 (1988); Graham v. Collins, 506 U.S. 461 (1993); Johnson v. Texas, 509

U.S. 350 (1993); In re Kunkle, 398 F.3d 683 (5th Cir. 2005)). Therefore, in order to grant relief on

a Penry claim, “we must determine (1) whether the mitigating evidence has met the ‘low threshold

for relevance’ and, if so, (2) that the evidence was beyond the scope of the jury” in answering the

9
The Supreme Court again held in Smith v. Texas, 125 S. Ct. 400 (2004) that substantially
similar jury instructions as those provided in Penry II were constitutionally inadequate.
10
The State concedes this fact. In its entirety, the supplemental instruction given at Coble’s
trial, reads as follows:

You are instructed that when you deliberate on the questions posed
in the special issues, you are to consider the 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 and record 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, 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 rather than a death sentence is an appropriate response to the
personal culpability of the defendant, a negative finding should be
given to one or more of the special issues under consideration.

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special issues.11 Bigby, 402 F.3d at 564-65 (quoting Tennard v. Dretke, 124 S. Ct. 2562, 2570

(2004) (internal quotations omitted); Madden v. Collins, 18 F.3d 304, 308 (5th Cir. 1994)).

A

First, the Supreme Court recently held that “a State cannot preclude the sentencer from

considering ‘any relevant mitigating evidence’ that the defendant proffers in support of a sentence less

than death . . . . [V]irtually no limits are placed on the relevant mitigating evidence a capital

defendant may introduce concerning his own circumstances.” Tennard, 124 S. Ct. at 2570 (quoting

Eddings v. Oklahoma, 455 U.S. 104, 114 (1982)). The Court defined relevant mitigating evidence

as “evidence which tends logically to prove or disprove some fact or circumstance which a fact-finder

could reasonably deem to have mitigating value.” Id. (quoting McKoy v. North Carolina, 494 U.S.

433, 440 (1990) (relevant mitigating evidence defined in the most expansive terms)). Furthermore,

the Court added that “a State cannot bar ‘the consideration of . . . evidence if the sentencer could

reasonably find it warrants a sentence less than death.’” Id. (quoting McKoy, 494 U.S. at 440).

During the sentencing phase of trial, Coble offered a variety of mitigating evidence. First, he

presented non-psychiatric mitigating evidence, including evidence of his troubled childhood; that his

father died before he was born; that his mother suffered a nervous breakdown when he was eleven;

and that he was sent to live at a state facility. Coble lived at the orphanage until he was seventeen,

11
Coble’s Penry claim must be considered in light of the recent Supreme Court decisions in
Tennard and Smith v. Texas, 125 S. Ct. 400 (2004) that significantly altered our circuit’s analysis
of mitigating evidence offered by a defendant in a capital case. Before Tennard and Smith, Penry-
type mitigating evidence was determined by the stringent test articulated in Graham v. Collins, 950
F.2d 1009, 1029 (5th Cir. 1992) (en banc), aff’d, 506 U.S. 461 (1993), and readopted in Robertson
v. Cockrell, 325 F.3d at 251. To qualify, mitigating evidence had to be “due to the uniquely severe
permanent handicaps with which the defendant was burdened through no fault of his own.”
Robertson, 325 F.3d at 251 (quoting Graham, 950 F.2d at 1029). In addition, the criminal acts of
the defendant had to be attributable to the severe permanent condition. Id. at 252.

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at which point he joined the Marines and served in Vietnam. During his four years of service, Coble

served as a machine gunner and was involved in combat. Upon his return to the United States, Coble

was hospitalized due to the trauma he experienced during the war. Likewise, Coble’s sister testified

that he was different after he returned from Vietnam. Coble offered testimony that he was involved

with various youth programs over the years, that he had a good relationship with his son, and that

he got along well with co-workers. Coble also served as a section leader in the U.S. Army reserves

and he offered evidence that he was well respected.

Coble also presented the testimony of two psychiatrists. The first, Dr. Mark, testified that

Coble was dangerous and might continue to be a danger. In fact, Dr. Mark testified that everything

in Coble’s history would make him a continuing threat. Dr. Mark also testified that Coble suffered

from two psychiatric disorders: post-traumatic stress disorder, brought about by his Vietnam

experiences, and a bipolar disorder. He stated that Coble was prone to become “[p]otentially

explosive and potentially aggressive and assaultive,” and suggested that the bipolar disorder might

be hereditary. Dr. Mark also indicated that these illnesses made Coble susceptible to severe mood

swings, which resulted in a loss of control on the day of the murders.

Dr. Mark did, however, indicate that Coble would be less likely to be violent if he took

medication. In fact, Dr. Mark indicated that, had he known before the murders of Coble’s past and

the depression Coble was experiencing because of the pending divorce and kidnaping charges, he

would have recommended hospitalization for further treatment and evaluation. Dr. Mark also

conceded that if Coble refused to take medication he would probably be violent in the future.

Dr. James Grigson, the second defense expert, testified that Coble was suffering from severe

depression at the time of the murders, and that it was very improbable that Coble would commit this

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type of offense again. Specifically, Dr. Grigson stated that Coble was more horrified by the pictures

of the victims than anyone, and that Coble had feelings of remorse and guilt. Both psychiatrists

agreed that Coble linked the loss of his wives with the loss of his mother, such that the divorces

triggered severe bouts of suicidal depression. Dr. Grigson also discussed a 1964 psychiatric report,

created by Dr. Ralph Hodges, which classified the fifteen year o ld Coble as having a “sociopathic

personality disturbance of the dissocial type.” Dr. Grigson stated that the term “sociopath” did not

mean the same thing in 1964 as it does now, and that a diagnosis of an individual as a sociopath could

not be made until a person was eighteen years old.12 He concluded that Coble “was not a sociopath

then, and not a sociopath now.”13

Applying the low threshold articulated in Tennard, it seems clear that the evidence submitted

by Coble constitutes relevant mitigating evidence, therefore satisfying the first prong in determining

if habeas relief is proper on his Penry claim. The Supreme Court noted in Tennard that “good-

character evidence . . . ‘may not be excluded from the sentencer’s consideration.’” 124 S. Ct. at 2570

(quoting Skipper v. South Carolina, 476 U.S. 1, 5 (1986)). All of Coble’s evidence is mitigating in

the sense t hat it might serve as a basis for a sentence less than death. See Tennard, 124 S. Ct. at

2570. Relevant mitigating evidence does not have to be linked to his conduct, but only show that it

could lead a jury to find that a sentence other than death is warranted. Id. at 2570-71.

B

12
Dr. Hodges did not define the term “sociopath” nor did Dr. Grigson explain in his testimony
the difference between the current meaning of the term compared to its meaning in 1964.
13
To rebut the psychiatric testimony, the State presented Dr. Richard Coons who testified
that, based on Coble’s history of emotional instability and violence, there was a probability that he
would continue to be dangerous in the future. In making this determination, Coons relied heavily on
the 1964 report.

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 “Once this low threshold for relevance is met, the Eighth Amendment requires that the jury

be able to consider and give effect to [Coble’s] mitigating evidence.” Id. (quoting Boyde v.

California, 494 U.S. 370, 3770-78 (1998)) (internal quotations omitted). In Jurek, the Supreme

Court expressly upheld the constitutionality of the manner in which mitigating evidence is considered

under the “special issues” submitted to juries in Texas capital cases. 428 U.S. at 276. The Court

reasoned that the constitutionality of Texas’ death penalty statute “turns on whether the enumerated

questions allow consideration of particularized mitigating factors.” Id. at 272. Since Jurek, the

Supreme Court has consistently upheld the constitutionality of the Texas special issues if the jury can

consider and give effect to the mitigating evidence at issue. See Graham v. Collins, 506 U.S. 461,

474 (1993). Therefore, we must determine whether Coble’s mitigating evidence was beyond the

scope of the jury in answering the two special issue interrogatories.

1

The second special issue, as discussed supra, instructed the jury to consider “whether there

is a probability that the defendant would commit criminal acts of violence that would constitute a

continuing threat to society.” The requirements of the Eighth Amendment are satisfied “even if

evidence is aggravating, as long as the mitigating aspect is within the effective reach of the jury.”

Davis v. Scott, 51 F.3d 457, 464 (5th Cir. 1995). As the Supreme Court noted in Johnson v. Texas,

509 U.S. 350, 369-70 (1993), the only way Penry’s mitigating evidence of impaired mental condition

could be considered under the special issues was as an aggravating factor for future dangerousness.

This Circuit has previously held that mitigating evidence of mental illness could be considered

within the context of the second special issue, future dangerousness, if the illness can be controlled

or go into remission. See, e.g., Lucas v. Johnson, 132 F.3d 1069, 1082-83 (5th Cir. 1998); Robison

-23-
v. Johnson, 151 F.3d 256, 266 (5th Cir. 1998). In Lucas this court distinguished Penry I, stating that

“the testimony at trial indicated that, although Lucas had mental problems, he responded well to

antipsychotic drugs like Thorazine and that his particular illness could be treated in a controlled

environment. This prospect of medical treatment placed the evidence of his mental illness and abusive

childhood within ‘the effective reach of the sentencer’” because “the jury could have considered

whether, in an institutional setting, the probability that Lucas posed as a future danger to society was

not so great as to merit imposition of the death sentence.” Lucas, 132 F.3d at 1082-83. Similarly,

this court held that Robison’s mental illness was within the scope of the future dangerousness special

issue since “both Robison’s expert and the state’s expert testified that schizophrenia is treatable, and

Robison’s expert testified that he was currently in a state of remission, which he attributed to being

a result of the structure of prison life.” Robison, 151 F.3d at 266.

As in Lucas and Robison, Coble’s mitigating evidence demonstrated that his mental illness

was treatable, thus placing it within the effective reach of the sentencer. Dr. Mark testified that, if

properly treated, Coble would be less likely to commit criminal acts constituting a continuing threat

to society. He also stated that medications were available to treat bipolar disorder that “help to

stabilize the mood on an even keel and chemically keep the person from getting the high moods or

the real low moods” as well as recently developed antidepressants that would “help block the

symptoms from coming out.” He testified that medical treatment would probably control Coble’s

mental illness and that “there wo uld be less likelihood of any criminal acts if he were adequately

treated for both of the disorders.” Dr. Grigson also testified, although Coble suffered “severe

depression due to his wife divorcing him,” that he “does not represent a continuing threat to society

and will not be involved in future acts of violence” because his crime was a “passion type thing.” The

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jury could have considered whether, in an institutional setting, the probability that Coble posed a

future danger to society was not so great as to merit imposition of the death sentence. Therefore,

we conclude that the special issues provided the jury an effective vehicle with which to consider

Coble’s mitigating evidence of his mental illnesses.

Coble’s case can be distinguished from this court’s recent holding in Bigby, where we found

that Bigby’s mitigation evidence of his mental illness could not be considered within the context of

the future dangerousness special issue because the evidence indicated that his condition could not be

adequately controlled or treated. Bigby, 402 F.3d at 571. In Bigby, “[t]he defense psychiatrist

testified that . . . medication was not sufficient to control his behavior and thinking.” Id. Dr. Mark

and Dr. Grigson concluded the opposite, that Coble’s mental illness could be controlled with

medication.

Next, Coble argues t hat the jury instructions deprived the jury of an effective vehicle with

which to consider his mitigating evidence of a troubled childhood. Prior to the Supreme Court’s

decision in Tennard, this court consistently held that evidence of child abuse or a troubled childhood

did not constitute “constitutionally relevant mitigating evidence.” Hernandez v. Johnson, 248 F.3d

344, 349 n.15 (5th Cir. 2001) (citing Davis, 51 F.3d at 461-62; Madden v. Collins, 18 F.3d 304, 308

(5th Cir. 1994)). This court, however, has also held that evidence of a defendant’s “unstable” and

“transient” childhood could be given effect under the special issues. Jacobs v. Scott, 31 F.3d 1319,

1327 (5th Cir. 1994) (citing Graham v. Collins, 506 U.S. 461 (1993)). In Jacobs, we distinguished

evidence of a troubled childhood offered by the defendant from that in Penry I. Id. Jacobs argued

that:

evidence was presented showing that Mr. Jacobs had an unstable, troubled childhood. He

-25-
 never knew his mother, and has only vague memories of his father. His father left him to live
alone with strangers when he was a small boy, and Mr. Jacobs never saw him again. Mr.
Jacobs ended up living in several foster homes as a child, separated from his sister, parents,
and all other family connections.

Id. Coble had a troubled childhood similar to that of Jacobs and Graham, “as opposed to a childhood

rife with harsh physical abuse like that of Penry.” Id. Coble’s evidence of his troubled childhood

included: (1) the death of his father before he was born; (2) poverty in childhood; (3) his stepfather’s

alcoholism and conflicts with his mother; and (4) his mother’s nervous breakdown. Coble’s evidence

is distinguishable from that in Penry. Therefore, we reject his contention that the Texas special issues

did not provide an adequate vehicle for the jury to make a reasoned moral response to Coble’s

mitigating evidence of his troubled childhood.

Finally, Coble argues that the jury could not consider the evidence of his goo charact er
d

within the second special issue. Coble presented evidence that: (1) he was involved with various

youth programs over the years; (2) he had a good relationship with his son; (3) he got along well with

co-workers; (4) he joined the Marines and served in Vietnam; and (5) he served as a section leader

in the U.S. Army reserves and was well respected. “Evidence of good character tends to show that

the crime was an aberration, which may support a negative answer to the special issue regarding the

future dangerousness of the defendant.” Boyd v. Johnson, 167 F.3d 907, 912 (5th Cir. 1999).

Therefore, as this court has previously held, “[good character] evidence can find adequate expression

under [the] second special issue.” Barnard v. Collins, 958 F.2d 634, 640 (5th Cir. 1992). See also

Boyd, 167 F.3d at 912; Graham, 950 F.2d at 1032-33.

2

The first special issue, as discussed supra, asked the jury to determine whether the defendant

-26-
had acted “deliberately, and with the reasonable expectation that the death of the deceaseds or

another would result.” In addition, the court instructed the jury that “‘deliberately’ has a meaning

different and distinct from the word ‘intentionally’ as that word was previously defined in the charge

on guilt and the word ‘deliberately’ as used in the first special issue means a manner of doing an act

characterized by or resulting from careful consideration, a conscious decision involving a thought

process which embraces more than mere will to engage in the conduct.”14

The State argues that since Coble’s jury was provided with a definition of “deliberateness,”

as suggested in Penry I and Penry II, that such a definition, as in Davis, cured any potential Penry

error. The State asserts that Davis indicated t hat a jury instruction defining deliberateness as

involving “careful consideration” would allow a jury to consider Davis’ evidence of “uncontrollable

impulses or lack of evaluation” due t o his mental illness. Thus, the State concludes that a similar

definition allowed Coble’s jury to give effect to his evidence of mental illness when answering the first

special issue. The State’s argument, however, was considered and rejected by this court in Bigby.

We determined that “[w]hile the state’s argument ))that any defect described in Penry with regard

to the first interrogatory was cured because ‘deliberately’ was defined ))is persuasive, we find that

the definition given by the state trial court was not sufficient to cure the infirmities found by the

Supreme Court.” Bigby, 402 F.3d at 570 n.7.

In Lucas, this court rejected the argument that the Texas “special issue” interrogatories did

not allow the jury to consider mitigating evidence of mental illness and childhood abuse. 132 F.3d

14
A nearly identical definition of “deliberate” was considered by this court in Davis, 51 F.3d
at 462. “Deliberate” in that case was defined as “a manner of doing an act characterized by or
resulting from careful consideration: ‘a conscious decision involving a thought process which
embraces more than mere will to engage in the conduct.’” Id.

-27-
at 1082. Experts at trial testified that Lucas was psychotic and suffered from schizophrenia, and that

at the time of the murder Lucas would have been out of touch with reality and out of control over

his impulses. Id. This court held that “[i]t is clear to us that the sent encer could have effectively

considered the mitigating aspect of such evidence under the first interrogatory, that is, whether Lucas

acted deliberately when he committed the murder.” Id. However, in Bigby this court distinguished

Lucas, stating that:

Although Bigby’s history of mental illness was relevant to whether he acted deliberately, it
also spoke to his moral culpability. Importantly, Bigby’s evidence indicated that his
schizophrenia was chronic and severe, caused him to suffer delusions with respect to the
actions and motivations of the people around him, could not be adequately treated, and
significantly impacted his interpersonal relationship abilities. Inquiry into whether Bigby acted
deliberately fails to fully account for the potential impact [schizophrenia] may have upon the
jury’s perception of Bigby’s moral responsibility for his crimes.

Bigby, 402 F.3d at 571. Therefore, this court concluded that the first special issue did not allow the

jury to adequately consider the effect of Bigby’s mitigating evidence of mental illness.

Dr. Mark testified that Coble’s depression )) as a result of his post-traumatic stress disorder

and bipolar disorder ))caused Coble to lose control of himself during the commission of the crimes.

Similarly, Dr. Grigson testified that Coble’s depression resulted in irrational and illogical behavior.

Having determined that the jury had an adequate means, through the second special issue, to

consider Coble’s mitigating evidence of mental illness, we need not consider whether the first special

issue provides another, separate, adequate means. We therefore decline to determine when the first

special issue provides a vehicle with which to consider mitigating evidence o f mental illness, as in

Lucas, as opposed to where the “deliberateness” special issue fails to adequately allow the jury to

consider the effect of this evidence, as in Bigby.

3

-28-
 The Supreme Court held in Penry II and Smith that the “supplemental instruction” provided

“an inadequate vehicle for the jury to make a reasoned moral response to Penry’s mitigating

evidence.” Penry II, 532 U.S. at 800; see also Smith, 125 S. Ct. at 406-07. Coble received a nearly

identical “supplemental instruction” to the one the Supreme Court considered in Penry II and Smith.

However, the supplemental instruction given in addition to the special issue interrogatories is only

unconstitutional where the special issue questions themselves are not broad enough to provide a

vehicle for the jury to give effect to the defendant’s mitigation evidence. Bigby, 402 F.3d at 570

(citing Robertson v. Cockrell, 325 F.3d 243, 258 (5th Cir. 2003)). If the jury can give full effect to

mitigating evidence in answering the special issues, the nullification instruction does not require the

jury to change a truthful “yes” answer to an untruthful “no” answer in order to give credence to the

mitigating evidence. See Penry II, 532 U.S. at 797. The nullification instruction in such cases would

not place the mitigating evidence beyond the effective reach of the jury. Any error in giving the

nullification instruction would be harmless and thus there would be no basis for habeas relief. Bigby,

402 F.3d at 570.

Since we hold that all of Coble’s mitigating evidence could be given effect within the special

issue questions, simply receiving the nullification instruction did not place Coble’s evidence beyond

the effective reach of the jury. Therefore, the state court’s adjudication of Coble’s Penry claim was

not “contrary to, [and did not involve] an unreasonable application of, clearly established Federal law,

as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1).

V

For the foregoing reasons, we AFFIRM the district court’s dismissal of Coble’s habeas

petition.

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