Nelson v. Quarterman

United States Court of Appeals
Fifth Circuit
F I L E D
REVISED MARCH 7, 2006
March 1, 2006
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
_______________________

No. 02-11096
_______________________

BILLY RAY NELSON,

Petitioner-Appellant,

versus

DOUGLAS DRETKE, Director, Texas Department
of Criminal Justice, Correctional Institutions Division,

Respondent-Appellee.

On Appeal from the United States District Court
For the Northern District of Texas

ON REMAND FROM THE UNITED STATES SUPREME COURT

Before JONES, Chief Judge, and STEWART and DENNIS, Circuit Judges.

EDITH H. JONES, Chief Judge:

This death penalty case is reconsidered pursuant to the

Supreme Court’s instruction following its summary grant of

certiorari and the vacating of our prior opinion based on Tennard

v. Dretke, 542 U.S. 274, 124 S. Ct. 2562 (2004). The panel

affirms, but we are divided on our reasoning.1

In his appeal to this court, Nelson sought a COA on three

issues: (1) whether the Texas penalty phase instructions used at

1
Judge Stewart concurs in the judgment. Judge Dennis specially
concurs infra.
trial provided the jury with an adequate vehicle to consider his

mitigating evidence, as required by the Eighth and Fourteenth

Amendments as construed in Penry v. Lynaugh, 492 U.S. 302, 109

S. Ct. 2934 (1989); (2) ineffectiveness of counsel for failing to

request an instruction on the definition of reasonable doubt at the

penalty phase; and (3) improper testimony by a state psychiatrist

in light of Estelle v. Smith, 451 U.S. 454, 101 S. Ct. 1866 (1981).

We granted a COA on the first two issues but denied COA on the

third issue and ultimately affirmed the district court’s denial of

habeas relief.

Nelson then appealed to the Supreme Court. Following

that Court’s decision in Tennard v. Dretke, 542 U.S. 274, 124

S. Ct. 2562 (2004), and remand to this court, we requested further

briefing based on Tennard.

After again reviewing the complete record, we reaffirm

the grant of COA and affirm the district court’s denial of habeas

relief as to Nelson’s Penry claim.2

BACKGROUND

Nelson was indicted for the capital murder of Charla M.

Wheat and the attempted capital murder of Wheat’s roommate Carol

Maynard that occurred on or about February 23, 1991. In December

1991, Nelson was tried for the capital murder of Wheat. During the

guilt/innocence phase of trial Maynard testified as to the events

2
We reinstate our denial of relief and of COA on the issues not
relevant to Tennard.

2
of February 23. Specifically, Maynard testified that she and Wheat

were forced, at knifepoint, by Nelson to perform sexual acts on

each other and on Nelson. Maynard further testified that Nelson

stabbed Wheat. Nelson also stabbed Maynard, who was five months

pregnant at the time, but she pretended to be dead and thus

survived. Other testimony established that the stab wounds were

the cause of Wheat’s death. Also, at trial, two voluntary

confessions by Nelson admitted that he committed the crime because

he “was drunk and wanted a piece of butt.”

On December 11, 1991, the jury found Nelson guilty of

capital murder. On December 13, following the punishment phase of

trial, the jury answered affirmatively the two special issues

submitted pursuant to Texas Code of Criminal Procedure article

37.071(b).3 Nelson was sentenced to death. Nelson’s sentence and

conviction were affirmed on direct appeal by the Texas Court of

Criminal Appeals on May 26, 1993. The United States Supreme Court

denied Nelson’s petition for writ of certiorari on March 21, 1994.

On April 17, 1997, Nelson commenced a series of state

3
The special issues are:
(b) On conclusion of the presentation of the evidence, the
court shall submit the following . . . [special] issues to the jury:
(1) whether the conduct of the defendant that caused
the death of the deceased was committed deliberately and with
the reasonable expectation that the death of the deceased or
another would result;
(2) whether there is a probability that the defendant
would commit criminal acts of violence that would constitute
a continuing threat to society[.]
TEX. CODE CRIM. PROC. ANN. ART. 37.071(b)(1) and (2). This statute was amended in
1991. All references to the “special issues” in this opinion reflect the statute
as it was written at the time of Nelson’s trial.

3
applications for writ of habeas corpus. The state district court

issued findings of fact and conclusions of law recommending denial

of relief on all of Nelson’s claims on July 10, 2001. The Texas

Court of Criminal Appeals denied Nelson’s application on the

findings and recommendations of the trial court. Additionally, it

dismissed Nelson’s subsequent application as an abuse of the writ

under TEXAS CODE OF CRIMINAL PROCEDURE ARTICLE 11.071, § 5(a).

DISCUSSION

As we did in Nelson’s prior appeal, we grant a COA on the

question whether the special issue instructions given to the jury

at sentencing failed to provide an adequate vehicle to give effect

to his mitigating evidence in violation of Penry v. Lynaugh

(Penry I), 492 U.S. 302, 109 S. Ct. 2934 (1989), and in light of

Tennard and Smith. The instructions given by the trial court were,

in pertinent part, the standard Texas capital case instructions,

i.e., those given in Penry I.

We grant a COA, but we conclude that, although the

district court partially relied on this court’s now-defunct

“constitutional relevance” analysis of mitigating evidence, the

district court properly denied relief on Nelson’s Penry claim.

See, e.g., McGruder v. Will, 204 F.3d 220, 222 (5th Cir. 2000) (“We

need not accept the district court’s rationale and may affirm on

any grounds supported by the record.”). We cannot grant relief on

a constitutional claim raised in a petition for habeas corpus

4
unless the state court adjudication “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.” 28 U.S.C. § 2254(d)(1). Although we review

the federal district court’s treatment of Nelson’s habeas petition,

the real focus of inquiry is the decision of the Texas courts, none

of which used this court’s now-overruled test.

This court recently noted that, “The Supreme Court’s

rulings in Penry II and Smith should not be read to disturb its

earlier holdings affirming the constitutionality of Texas’s

statutory death penalty sentencing scheme.” Bigby v. Dretke, 402

F.3d 551, 570 (5th Cir. 2005) (internal citations omitted).

Accordingly, for a Penry I claim to succeed, a court must first

determine whether the defendant’s proffered mitigating evidence

reasonably might serve as a basis for a sentence less than death.

Tennard, 124 S. Ct. at 2571. In this inquiry, mitigating evidence

is “relevant” so long as it has “any tendency to make the existence

of any fact that is of consequence to the determination of the

action more probable or less probable than it would be without the

evidence.” Id. (quoting McKoy v. North Carolina, 494 U.S. 433,

440, 110 S. Ct. 1227, 1232 (1990) and New Jersey v. T.L.O., 469

U.S. 325, 345, 105 S. Ct. 733, 744 (1985)). Second, we must

determine whether the proffered, relevant evidence was beyond the

“effective reach” of the jurors. Madden v. Collins, 18 F.3d 304,

308 (5th Cir. 1994). Evidence is beyond the “effective reach” of

5
the jury “only if there exists a reasonable likelihood that the

jury would have [found] itself foreclosed from considering” the

mitigating evidence. Johnson v. Texas, 509 U.S. 350, 368, 113

S. Ct. 2658, 2669 (1993).

In the sentencing phase, Nelson introduced evidence that

(1) his mother rejected him; (2) he was intoxicated by drugs and

alcohol when he committed the crime; (3) he had troubled

relationships with his brother and women; and (4) he suffered from

a treatable borderline personality disorder.4

In light of Tennard,5 all of this evidence could be

construed as mitigating, but only Nelson’s evidence of borderline

personality disorder arguably supports the second prong of his

Penry I claim.

Nelson’s evidence relating to his troubled interpersonal

relationships and indifferent treatment by his mother is within the

reach of the Texas punishment issues. The state court reasonably

4
Nelson contends that evidence of his organic brain damage could not
be fully considered by the jury within the scope of the special issues. There
is no such evidence. The only record evidence of organic brain damage is a
single sentence of testimony from an expert witness for the defense, stating
“there is minimal room to consider that there may be minimal brain damage.” The
expert, however, explicitly said that he could not make a formal diagnosis that
Nelson in fact had brain damage. He only suggested that if further medical
examinations were performed, the existence of brain damage should not be ruled
out prior to the exam. This evidence was not before the jury and can play no role
in a Penry analysis.
5
See id. at 2570 (citing, New Jersey v. T.L.O., 469 U.S. at 345 (“[I]t
is universally recognized that evidence, to be relevant to an inquiry, need not
conclusively prove the ultimate fact in issue, but only have ‘any tendency to
make the existence of any fact that is of consequence to the determination of the
action more probable or less probable than it would be without the evidence.’”)
(quoting FED. RULE EVID. 401)).

6
distinguished Nelson’s claim from Penry’s evidence of severe

physical abuse by his mother. The state court’s decision is

supported by longstanding precedent concerning similar — and more

severe — claims of parental abuse and troubled interpersonal

relationships. See Graham v. Collins, 506 U.S. 461, 476, 113

S. Ct. 892, 902 (1993) (concluding family background could be

considered within the special issues); Cole v. Dretke, 418 F.3d 494

(5th Cir. 2005) (holding troubled childhood, including alcoholic

parents who deserted the defendant, alcoholic grandparents who did

not want to care for the defendant upon taking custody of him, and

an isolated childhood punctuated by frequent changes in caretakers

could be considered within the special issues); Lucas v. Johnson,

132 F.3d 1069, 1082-83 & n.8 (5th Cir. 1998) (traumatic childhood

was within the effective reach of the jury under the first special

issue, deliberateness); Drew v. Collins, 964 F.2d 411, 420 (5th

Cir. 1992) (adverse effects of troubled childhood — including

testimony that parents fought repeatedly, parents divorced and

abandoned petitioner when he was very young, and petitioner was

raised by his grandparents — could be considered under the special

issues); Barnard v. Collins, 958 F.2d 634, 639 (5th Cir. 1992)

(troubled childhood, including evidence that petitioner’s father

abandoned him from age four to age nine, was not Penry evidence

absent proof these experiences had a psychological effect on the

7
petitioner).6 Specifically, when considering the first special

issue, deliberateness, the jury could have given effect to Nelson’s

claims that his mother abandoned him, his parents divorced at a

young age, and he never had a relationship with his own child. All

of these traumatic experiences might have countered the State’s

argument that Nelson “deliberately” murdered this victim; the jury

simply disagreed.

As to Nelson’s mitigation claim of voluntary intoxica-

tion, the state courts and federal district court correctly held

that the special issues plainly allowed the jury to consider this

evidence. See West v. Johnson, 92 F.3d 1385, 1405 (5th Cir. 1996)

(“As to the drinking and inference of intoxication, we have many

times held that this may be adequately taken into account under

both the first and second punishment issues (deliberateness and

future dangerousness).”); Briddle v. Scott, 63 F.3d 364, 377 (5th

Cir. 1995)(“[E]vidence of intoxication may be considered as

favorable to a negative answer to both the first and second

punishment special issues, and hence is not Penry evidence.”);7 see

also Graham v. Collins, 506 U.S. at 500, 113 S. Ct. at 915.

Turning finally to Nelson’s evidence relating to a

6
Lucas does not make any reference to, or rely upon, the tests
rejected by the Supreme Court in Tennard. Barnard and Drew do rely on our now-
defunct “uniquely severe permanent handicap” test as to other claims, but in no
way used this test in adjudicating the claims of parental neglect. Therefore,
the relevant aspects of Barnard and Drew are still controlling and support denial
of Nelson’s Penry claim concerning parental neglect.
7
None of these precedents makes any reference to, or rely upon, the
tests rejected by the Supreme Court in Tennard.

8
borderline personality disorder, his expert characterized the

disorder as one that causes Nelson’s moods to shift from normal to

depressed and anxious. Dr. Hickman, Nelson’s expert, described

Nelson’s personality disorder as a psychological condition that

caused his moods to go up and down between being normal and being

depressed, anxious, and unsure of the reasons for his mood swings.

Nelson responded to this condition by consuming alcohol and/or

drugs. Significantly, Dr. Hickman testified that Nelson’s disorder

was treatable with medication and psychotherapy. This court’s

decisions undermine Nelson’s claim that the jury was unable to give

mitigating effect to this evidence. In Coble v. Dretke, 417 F.3d

508 (5th Cir. 2005), the court reiterated 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.” Id. at 524 (citing Lucas v.

Johnson, 132 F.3d 1069, 1082-83 (5th Cir. 1998) and Robison v.

Johnson, 151 F.3d 256, 266 (5th Cir. 1998)). Coble also distin-

guished a condition involving a treatable mental disorder from this

court’s Bigby decision, 402 F.3d at 571, in which medication could

not control the defendant’s schizophrenic behavior and thinking.8

Nelson’s treatable disorder is thus distinct from one that mandates

8
As in Coble, we need not speculate under what circumstances the first
special issue, concerning a defendant’s deliberateness in perpetrating the
capital crime, will be inadequate to afford full mitigating effect to evidence
of mental illness. Cf. Lucas, 132 F.3d at 1082-83; Bigby, 402 F.3d at 565-66.

9
relief under Penry I.9

Alternatively, we hold that Nelson’s scanty evidence of

borderline personality disorder falls within a qualification to the

Court’s reasoning in Tennard, which recognized that relevant

mitigating evidence ultimately may be insufficient to warrant a

sentence less than death if a reasonable jury could not so find

based on all of the evidence in the case. Tennard, 124 S. Ct. at

2570;10 accord Bigby, 402 F.3d at 567-69. Further, under Tennard,

evidence of a trivial feature of the defendant’s character or the

circumstances of the crime unlikely to have any tendency to

mitigate the defendant’s culpability may be deemed irrelevant and

inadmissible. Tennard, 124 S. Ct. at 2571. Nelson’s evidence of

borderline personality disorder was not “of such a character that

it ‘might serve as a basis for a sentence less than death.’” Id.

(quoting Skipper v. South Carolina, 476 U.S. 1, 5, 106 S. Ct. 1669,

1671 (1986)). When juxtaposed with the significant aggravating

evidence, the purported mitigating evidence of this condition and

its effects could not reasonably provide a jury with sufficient

reason to render a life sentence.

Based on the AEDPA standard and the nature of Nelson’s

9
We express no opinion on whether any allegation of mental disorder,
no matter how nebulous, calls into question the sufficiency of the Texas special
issues.
10
The fact that an item of evidence is relevant, however, does not mean
that it is sufficient to prove the fact of consequence to which it is directed.
See FED. R. EVID. 401 ADVISORY C. NOTES (“‘A brick is not a wall . . . It is not to
be supposed that every witness can make a home run.’”).

10
proffered evidence, we cannot say that the Court of Criminal

Appeals unreasonably applied clearly established federal law in

rejecting Nelson’s Penry claim. Nelson points to no caselaw that

the state courts failed to acknowledge, nor to any Supreme Court

decisions that the courts unreasonably applied. Any analytical

problems in this case were made by this court (and the federal

district court following this court’s precedent) in our previous,

vacated decision. The Court of Criminal Appeals never relied on

the now-defunct “constitutional relevance” test or its component

parts, nor has our review of the complete record revealed any

attempt by that court to place an elevated burden on Nelson for his

claims. Equally important, all of Nelson’s proffered mitigating

evidence could be considered and given effect by the jury at

sentencing within the context of the Texas punishment issues.

Therefore, we affirm, albeit for different and additional reasons,

the district court’s denial of relief on this claim.

CONCLUSION

With respect to all claims except Nelson’s Penry claim,

we reinstate our earlier decision (granting COA on the ineffective

assistance claim and denying relief on the merits, and denying COA

as to all other issues raised in Nelson’s habeas petition). After

a careful examination of Supreme Court precedent and additional

briefing on Nelson’s Penry I claim, we grant COA but find his

argument lacking on the merits. The judgment of the district court

11
is AFFIRMED.

12
 DENNIS, CIRCUIT JUDGE, CONCURRING IN THE JUDGMENT.

I agree with the judgment proposed by Chief Judge Jones’

opinion, but because I cannot fully subscribe to either rationale

given in the opinion, I respectfully concur in the judgment only

for the following different reasons.

I. Procedural Background

In Nelson v. Cockrell, 77 Fed. Appx. 209 (5th Cir. 2003),

this panel granted Nelson’s application for a COA on whether the

special issues instruction used in the capital punishment

sentencing proceeding failed to provide the jury with an adequate

vehicle to give full consideration and effect to the defendant’s

mitigating evidence in violation of the Eight and Fourteenth

Amendments as construed in Penry v. Lynaugh, 492 U.S. 302 (1989)

(Penry I). After considering his appeal, this panel concluded

that none of Nelson’s evidence is incapable of being assessed and

assigned full mitigating weight under the charge presented to his

jury; and that the state court did not unreasonably apply clearly

established federal law in rejecting Nelson’s claim. Nelson,

supra.11

11
I concurred, considering myself bound by our en banc decision in
Robertson v. Cockrell, 325 F.3d 243 (2003), but I noted that I adhered to my
individual views expressed in my dissent filed in Robertson. Id.

13
 In the reasons given for these conclusions, however, the

panel did not discuss the state court decision or examine Penry

v. Johnson, 532 U.S.782 (2001) (Penry II) or any other Supreme

Court opinion. The panel’s conclusions were based on threshold

or screening rules created by decisions of this Circuit and

largely collected in Robertson v. Cockrell, 325 F.3d 243 (5th Cir.

2003). Those rules were based on holdings by this court that

substance addiction is not Penry-type evidence; that treatable

mental disease, like borderline personality disorder, can be given

full effect via the special issues; that non-extreme childhood

abuse and neglect is not constitutionally relevant; and that

evidence of possibility of brain damage without causal nexus to

the crime is not constitutionally relevant. See Nelson, 77 Fed.

Appx. at 213 (citing, inter alia, Robertson, supra; Graham v.

Collins, 950 F.2d 1009 (5th Cir. 1992)).

The Supreme Court granted certiorari, vacated this panel’s

judgment and remanded the case to us for further consideration in

light of Tennard v. Dretke, 542 U.S. 274 (2004). See Nelson v.

Dretke, 542 U.S. 934 (2004).

The light shed by the Supreme Court’s holding in Tennard

includes the following: (1) The Fifth Circuit’s threshold

“constitutional relevance” tests have no foundation in the Supreme

14
Court’s decisions. Relevant evidence is evidence that has any

tendency to make the existence of any fact that is of consequence

to the determination of the action more probable or less probable

that it would be without the evidence. This general standard of

relevance applies in death penalty cases just as it does in other

cases. McKoy v. North Carolina, 494 U.S. 433, 440-441 (1990). (2)

Once this low relevance threshold is met, the Eighth Amendment

requires that the jury must be able to consider and give effect

to a capital defendant’s mitigating evidence. Id. (quoting Boyde

v. California, 494 U.S. 370, 377-378 (1990)). Impaired

intellectual functioning has a mitigating dimension beyond the

impact it has on the ability to act deliberately. Id.

As Chief Judge Jones correctly observes, because Nelson filed

his federal habeas petition after the enactment of the

Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), the

provisions of that law govern the scope of our review.

Specifically, 28 U.S.C. § 2254(d)(1) (1994 ed., Supp. V) prohibits

a federal court from granting an application for a writ of habeas

corpus with respect to a claim adjudicated on the merits in state

court unless that adjudication "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

15
United States." In Williams v. Taylor, 529 U.S. 362, 404 (2000),

the Court explained that the "contrary to" and "unreasonable

application" clauses of § 2254(d)(1) have independent meaning.

A state court decision will be "contrary to" clearly established

Supreme Court precedent if the state court either "applies a rule

that contradicts the governing law set forth in [Supreme Court]

cases," or "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." Id. at 405-406. A state court decision will be an

"unreasonable application of" the Supreme Court’s clearly

established precedent if it "correctly identifies the governing

legal rule but applies it unreasonably to the facts of a

particular prisoner's case." Id. at 407-408.

"[A] federal habeas court making the 'unreasonable

application' inquiry should ask whether the state court's

application of clearly established federal law was objectively

unreasonable." Id. at 409. Distinguishing between an unreasonable

and an incorrect application of federal law, the Court clarified

that even if the federal habeas court concludes that the state

court decision applied clearly established federal law

incorrectly, relief is appropriate only if that application is

16
also objectively unreasonable. Id. at 410-411.

Nelson’s present Penry claim was adjudicated on the merits

by the Texas Court of Criminal Appeals (CCA) on October 10, 2001.

Thus, we must determine whether that adjudication "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.” Because the CCA in that

case denied habeas relief for the reasons found and recommended

by the Texas district court, however, we must consider the

district court’s opinion as well as the record upon which the

Texas courts based their decisions.

The meaning of the statutory phrase "clearly established

Federal law, as determined by the Supreme Court of the United

States" refers to “the holdings, as opposed to the dicta, of

[Supreme Court] decisions as of the time of the relevant

state-court decision.” Williams, 529 U.S. at 365. Therefore, to

determine whether the pertinent state-court adjudication of

Nelson’s Penry claim "was contrary to ... clearly established

Federal law, as determined by the Supreme Court of the United

States," or "involved an unreasonable application of ... clearly

established Federal law, as determined by the Supreme Court of the

United States" we are guided not only by Penry I but also by all

17
other Supreme Court jurisprudence clearly established at the time

of the CCA decision in this case.

II. Overview

Although I agree with Chief Judge Jones that we must

ultimately affirm the denial of habeas relief to Nelson, I believe

that our duty under AEDPA requires a more intense initial focus

on the CCA’s decision, a more extensive search for the applicable

federal law clearly established by the Supreme Court’s decisions,

and a thorough multi-step application of that clearly established

Supreme Court jurisprudence, rather than Fifth Circuit cases, to

the evidence and record in the present case. Further, we cannot

determine the firmness, clarity and meaning of the pertinent legal

principles by simply reading a few of the Supreme Court’s opinions

written just prior to the CCA’s decision of October 10, 2001. To

understand fully the meaning of the Court’s language and holdings

in capital punishment cases requires knowledge of the whole

context and history of its post-Furman death penalty

jurisprudence. For example, the concept of relevant mitigating

evidence is used throughout this field by the Court without

detailed definition of those terms in most cases. But this does

not necessarily prevent us from finding that the general meaning

18
of relevant mitigating evidence in all cases was “established,”

“clear” and commonly understood even before F.R.E. 401's

definition of “relevant evidence” was expressly endorsed in

T.L.O.12, McKoy, and Tennard. Nor must the Court re-explain the

essential requisites of individualized sentencing in every capital

case, or in respect to every state’s death penalty system, in

order for those requisites to be generally applicable as clearly

established federal law. Thus, the fundamental principles of

selecting only the most reprehensible of murderers for the death

penalty according to individual comparative assessments of

culpability do not become less established because they are often

taken for granted rather than expressly iterated in every case.

Legal principles and standards so well understood as to have

become implicit or elliptical are not obsolete or any less

binding.

For these reasons, it may be helpful in this and other Penry

claim cases to identify separately the relevant principles and

terms at issue and to determine the extent of the establishment

and clarity of each at certain times in the death penalty

jurisprudence, such as before and after Penry I (1989), before and

after Penry II (June 4, 2001), and immediately before the CCA

12
New Jersey v. T.L.O., 469 U.S. 325 (1985).

19
 decision (October 10, 2001) in this case. This may also help us

understand better the meaning of the Court’s opinions in those

cases. For this purpose, I will first set forth a summary of my

understanding of the current pertinent clearly established

principles of law regarding the death penalty. Then, I will start

at the beginning of the post-Furman era and proceed

chronologically through the Court’s cases expounding those

principles. Finally, of course, I will strive to arrive at the

federal law clearly established by the Supreme Court at the time

of the CCA’s decision on October 10, 2001, and apply that law to

the instant case.

III. Hypothesis of Principles

of Clearly Established Federal Law

I tentatively assume that, when the CCA denied Nelson habeas

relief on his Penry claim on October 10, 2001, federal law clearly

established by the Supreme Court required a state to (1) empower13

its capital sentencer to (a) give full consideration and effect

to all of the defendant’s relevant mitigating evidence; (b) make

an individualized assessment of the level of the defendant’s moral

13
By “empower” I mean that the State must clothe the capital sentencer
with legitimate ability and authority to perform these functions. I do not mean
that the state is required to instruct or specifically direct the sentencer to
perform them. See Buchanan v. Angelone, 522 U.S. 269 (1998).

20
 culpability or deathworthiness;14 and (c) select the appropriate

sentence of either life or death for each convicted defendant

based on that assessment in light of all of the relevant evidence

in the case; and (2) to refrain from interfering with the capital

sentencer’s proper use of those constitutionally protected powers.

IV. Pre-Penry I

The capital punishment prerequisites of individualized

sentencing based on the offender’s level of culpability informed

by consideration of all relevant mitigating evidence were

established prior to Penry I. In the 1970's and early 1980's it

was established that, because the death penalty is uniquely

irrevocable, it must be reserved for the most morally depraved

crimes committed by the most extremely culpable and deserving

offenders, as determined by the capital sentencer after

consideration of all of the defendant’s mitigating evidence in

light of the entire record. See Roberts (Harry) v. Louisiana, 431

U.S. 633 (1977); Lockett v. Ohio, 438 U.S. 586 (1978); Bell v.

14
See Phyllis L. Crocker, Concepts of Culpability and Deathworthiness,
66 FORDHAM L. REV. 21, 35-36 (1997).(“At the punishment phase, the concept of
culpability stands as the benchmark for when the death penalty is an appropriate
punishment.”) As the author explains, “Deathworthiness” might be more appropriate
so as to distinguish “culpability” for purposes of sentencing from “culpability”
for purposes of the guilt determination. But as the Court has continued to use
“culpability” to signify that which tends to make the defendant more or less
deserving of the death penalty, I will also.

21
Ohio, 438 U.S. 637 (1978); Green v. Georgia, 442 U.S. 95 (1979);

Eddings v. Oklahoma, 455 U.S. 104 (1982) (all vacating death

sentences where the sentencer did not consider all mitigating

factors proffered by the defendant).

In Woodson v. North Carolina, the Court’s plurality concluded

that "in capital cases the fundamental respect for humanity

underlying the Eighth Amendment . . . requires consideration of

the character and record of the individual offender and the

circumstances of the particular offense as a constitutionally

indispensable part of the process of inflicting the penalty of

death." 428 U.S. 280, 304 (1976). The mandatory death penalty

statute in Woodson was held invalid because it permitted no

consideration of "relevant facets of the character and record of

the individual offender or the circumstances of the particular

offense." Id. The Court further held that “an individualized

decision is essential in capital cases. The need for treating each

defendant in a capital case with that degree of respect due the

uniqueness of the individual is far more important than in

noncapital cases.” Lockett v. Ohio, 438 U.S. 586, 605 (1978).

These principles of individualized sentencing, viz., full

consideration of all relevant mitigating evidence, assessment of

each offender’s level of culpability, and sentence selection based

22
 on that assessment, recognized by the Woodson and Lockett

pluralities were adopted and firmly established by subsequent

Supreme Court majorities.

A. Exempted Categories.

In certain kinds of cases, the Court held that the principles

underlying capital punishment sentencing required that whole

categories of crimes and offenders be exempted from eligibility

for the death penalty because they presented an insufficient level

of moral culpability to warrant the most extreme form of

punishment. Prior to Penry I, the Court thus exempted murderers

whose crimes reflect only minimal or ordinary moral depravity;15

rapists of adult women;16 murderer-accomplices who lack a

sufficiently culpable state of mind;17 and murderers who were under

the age of 18 at the time of the crime.18 Subsequent to Penry I

& II, the court applied the same principles to exempt mentally

retarded persons and offenders who were under the age of 16 at the

15
Atkins, 536 U.S. at 305 (citing Godfrey v. Georgia, 446 U.S. 420,
433 (1980) (plurality opinion).
16
Coker v. Georgia, 433 U.S. 584, 592 (1977).
17
Enmund v. Florida, 458 U.S. 782, 801 (1982).
18
Roper, supra (superseding Thompson v. Oklahoma, 487 U.S. 815, 838
(1988), prohibiting death penalty for murderers under 16 at the time of the crime
(plurality opinion)).

23
 time of the crime. Atkins v. Virginia, 536 U.S. 304 (2002); Roper

v. Simmons, 543 U.S. 551 (2005). Even dissenters who disagreed

with categorical exemptions often expressed support for the

constitutional requirement that the capital sentencer be empowered

and allowed to select only those for the death penalty who were

sufficiently culpable based on an individualized assessment of the

mitigating evidence and the circumstances of each case.19 This

signifies a deep and abiding establishment of the principle of

individualized capital sentencing on the basis of each offender’s

degree of culpability and full consideration of mitigation

evidence.

B. Full consideration of all relevant mitigating evidence for the

purpose of individualized assessment of culpability and sentence

selection.

19
Atkins, 536 U.S. at 318; see also id. at 349-351 (stating that “only
the sentencer can assess whether his retardation reduces his culpability enough
to exempt him from the death penalty”)(Scalia, J., Rehnquist, J., and Thomas, J.,
dissenting); Roper, 125 S. Ct. at 1224 (stating that “[i]n capital cases, this
Court requires the sentencer to make an individualized determination, which
includes weighing aggravating factors and mitigating factors”)(Scalia, J.,
dissenting); Thompson, 487 U.S. at 870 (recognizing a constitutional trend
towards “individualized sentencing determinations rather than automatic death
sentences for certain crimes”) (Scalia, J., Rehnquist, J., and White, J.,
dissenting); and Eddings v. Oklahoma, 455 U.S. 104, 121 (1982) (interpreting
Lockett as requiring an individualized consideration of mitigating circumstances)
(Burger, J., White, J., Blackmun, J., and Rehnquist, J., dissenting).

24
 In Eddings v. Oklahoma, 455 U.S. 104 (1982), a majority of

the Court applied Lockett to recognize that "justice ... requires

... that there be taken into account the circumstances of the

offense together with the character and propensities of the

offender" and reversed the death penalty because “the sentencer

in capital cases must be permitted to consider any relevant

mitigating factor” and the trial judge had erred in finding as a

matter of law that he could not consider the mitigating evidence

of Eddings’s violent family history. The Court observed that the

common law has struggled with the problem of developing a capital

punishment system that is "sensible to the uniqueness of the

individual." Id. at 110.

V. Penry I

A. Penry I clearly established or reaffirmed that a State must

enable and allow its capital sentencer to consider and give effect

to any mitigating evidence relevant to a defendant’s background

and character or the circumstances of the crime. Thus, the special

issues instruction as applied, because of the absence of an

instruction that the jury could give that evidence effect by

declining to impose the death penalty, was in conflict with the

Eighth Amendment.

25
 The Supreme Court in Penry I in 1989 reaffirmed the clearly

established principles that a capital sentencer must be empowered

to individually assess the culpability and just desert of each

defendant and individually determine the appropriate sentence for

him based on all the relevant mitigating evidence. The Court held

that:

(1) at the time Penry's conviction became final, it was

clear from Lockett and Eddings that a State could not,

consistent with the Eighth and Fourteenth Amendments,

prevent the sentencer from considering and giving

effect to evidence relevant to the defendant's

background or character or to the circumstances of the

offense that mitigate against imposing the death

penalty. 492 U.S. at 318;

(2) [t]he rule Penry [sought]--that when such

mitigating evidence [of his mental retardation and

abused childhood] is presented, Texas juries must ...

be given jury instructions that make it possible for

them to give effect to that mitigating evidence in

determining whether the death penalty should be

26
imposed--is not a 'new rule' under Teague because it is

dictated by Eddings and Lockett. Id. at 318-19;

(3) "[u]nderlying Lockett and Eddings is the principle that

punishment should be directly related to the personal

culpability of the criminal defendant,” Id. at 319;

(4) "[I]t is not enough simply to allow the defendant to

present mitigating evidence to the sentencer. The sentencer

must also be able to consider and give effect to that

evidence in imposing sentence.” Id;

(5) "In order to ensure reliability in the determination that

death is the appropriate punishment in a specific case, the

jury must be able to consider and give effect to any

mitigating evidence relevant to a defendant's background and

character or the circumstances of the crime.” Id. at 328; and

(6) therefore, "in the absence of instructions informing the

jury that it could consider and give effect to the mitigating

evidence of Penry's mental retardation and abused [childhood]

background by declining to impose the death penalty, ... the

27
 jury was not provided with a vehicle for expressing its

reasoned moral response to that evidence in rendering its

sentencing decision. Id. at 328. (internal quotations and

citations omitted).20

20
Thus, the Supreme Court in Penry I agreed with Penry's argument "that
his mitigating evidence of mental retardation and childhood abuse has relevance
to his moral culpability beyond the scope of the special issues, and that the
jury was unable to express its reasoned moral response to that evidence in
determining whether death was the appropriate punishment." Id. at 322. The Court
explained in detail why it rejected the State's contrary argument that the jury
was able to consider and give effect to all of Penry's mitigating evidence in
answering the three special issues. Id.

In Penry I, the first special issue, which asked whether the defendant
acted "deliberately and with the reasonable expectation that the death of the
deceased ... would result," impermissibly limited the jury's function because the
term "deliberately" had not been defined by the Texas Legislature, the Texas
Court of Criminal Appeals, or the trial court's instructions. Id. at 322. Even
if the jurors "understood 'deliberately' to mean something more than ...
'intentionally' committing murder, those jurors may still have been unable to
give effect to Penry's mitigating evidence in answering the first special issue."
Id. The reason was because "deliberately" was not defined "in a way that would
clearly direct the jury to consider fully Penry's mitigating evidence as it bears
on his personal culpability." Id. at 323. Consequently, the Court concluded,
unless there are "jury instructions defining 'deliberately' in a way that would
clearly direct the jury to consider fully Penry's mitigating evidence as it bears
on his personal culpability, we cannot be sure that the jury was able to give
effect to the mitigating evidence of Penry's mental retardation and history of
abuse in answering the first special issue." Id. at 323. "Thus, we cannot be sure
that the jury's answer to the first special issue reflected a reasoned moral
response to Penry's mitigating evidence." Id. (internal quotation omitted).

The second special issue, which asked "whether there is a probability that
the defendant would commit criminal acts of violence that would constitute a
continuing threat to society," permitted the jury to consider and give effect to
Penry's mental retardation and childhood abuse as "relevant only as an
aggravating factor...." Id. The second special issue was inadequate both because
it only gave effect to Penry's evidence as an aggravating factor, and because it
did not allow the jury to give full effect to Penry's mitigating evidence. Id.
at 323. Thus, the Court concluded that Penry's evidence of mental retardation and
childhood abuse was a "two-edged sword," diminishing "his blameworthiness for his
crime even as it indicates that there is a probability that he will be dangerous
in the future." Id. at 324.

28
B. The principle of relevance under Federal Rule of Evidence 401
applies in capital cases and cannot be distorted by the state so
as to interfere with the sentencer’s full consideration and use
of relevant evidence in culpability assessment and sentence
selection.

In McKoy v. North Carolina, 494 U.S. 433 (1990) the Court

held that a state’s capital sentencing scheme impermissibly

limited jurors' consideration of mitigating evidence in violation

of the Eighth Amendment where it declared irrelevant mitigating

circumstances not found unanimously. Furthermore, the Court

stated that its holdings in Skipper v. South Carolina, 476 U.S.

1 (1986), and Eddings, show that the mere declaration that

evidence is “legally irrelevant” to mitigation cannot bar the

consideration of that evidence if the sentencer could reasonably

find that it warrants a sentence less than death. The state’s

actions were held to impermissibly “distort[] the concept of

relevance” because “[i]t is universally recognized that evidence,

to be relevant to an inquiry, need not conclusively prove the

ultimate fact in issue, but only have ‘any tendency to make the

existence of any fact that is of consequence to the determination

of the action more probable or less probable than it would be

without the evidence.’ FED. R. EV. 401.” McKoy, 494 U.S. at 440

(quoting T.L.O. 469 U.S. at 345 (1985)). Moreover, the Court made

29
clear that “[t]he meaning of relevance is no different in the

context of mitigating evidence introduced in a capital sentencing

proceeding.” Id.

C. States cannot limit the sentencer’s full consideration of

relevant mitigation factors.

Shortly after Penry I, well before the pertinent Texas CCA

decision in this case, in Payne v. Tennessee, 501 U.S. 808, 824

(1991), Chief Justice Rehnquist, writing for a six-Justice

majority, declared that “States cannot limit the sentencer's

consideration of any relevant circumstance that could cause it to

decline to impose the penalty. In this respect, the State cannot

challenge the sentencer's discretion, but must allow it to

consider any relevant information offered by the defendant."

(citing McCleskey v. Kemp, 481 U.S. 279, 305-306 (1987)).

D. When there is a claim is that the challenged special issues
instruction failed to enable and allow the jury to consider and
give effect to relevant mitigating evidence, the proper inquiry
is whether there is a reasonable likelihood that the jury has
applied the instruction in a way that prevented the jury from
giving consideration and effect to all of the defendant’s
relevant mitigating evidence. Although a defendant need not
establish that the jury was more likely than not to have been
impermissibly inhibited by the instruction, a capital sentencing
proceeding does not violate the Eighth Amendment if there is only

30
a possibility of such an inhibition.

In Boyde v. California, 494 U.S. 370 (1990) the Court held

that where the claim is that a challenged instruction is ambiguous

and therefore subject to erroneous interpretation, the proper

inquiry is whether there is a reasonable likelihood that the jury

has applied the instruction in a way that prevents the

consideration of constitutionally relevant evidence. Although a

defendant need not establish that the jury was more likely than

not to have been impermissibly inhibited by the instruction, a

capital sentencing proceeding does not violate the Eighth

Amendment if there is only a possibility of such an inhibition.

Id.

A few years later, the Court in Johnson v. Texas, 509 U.S.

350, 367 (1993), held that where the question is raised whether

the Texas special issues allowed adequate consideration of the

mitigating evidence of petitioner's youth, “the standard against

which we assess whether jury instructions satisfy the rule of

Lockett and Eddings was set forth in Boyde v. California, 494 U.S.

370 [] (1990). There we held that a reviewing court must determine

‘whether there is a reasonable likelihood that the jury has

applied the challenged instruction in a way that prevents the

consideration of constitutionally relevant evidence.’ Id at 380

31
 []. Although the reasonable likelihood standard does not require

that the defendant prove that it was more likely than not that the

jury was prevented from giving effect to the evidence, the

standard requires more than a mere possibility of such a bar.”

Thus, the Court in Johnson acknowledged that the special

issues instruction had caused a possible constitutional violation

and adopted the Boyde reasonable likelihood test for the purpose

of determining whether a violation had indeed occurred. Further,

the Court in Johnson applied the Boyde test and concluded that

there was not a reasonable likelihood that the instruction had

prevented a full consideration of the relevant mitigating evidence

of Johnson’s youth for the purpose of assessing his culpability.

To support its conclusion the Court’s majority opinion undertook

an extensive analysis of the evidence in that particular case and

demonstrated to its own satisfaction that the jury’s mental

process in considering the evidence for the purpose of answering

the future dangerousness special issue was substantially the same

as that of a jury which had considered the evidence for the

purpose of assessing the defendant’s culpability and selecting the

appropriate sentence.21

21
Thus, the Court stated that answering the future dangerousness
special issue “is not independent of an assessment of personal culpability”,
involving “the extent to which youth influenced the defendant's conduct.”

32
 In essence, the Court’s majority indicated that the jury’s

consideration of the mitigating evidence in answering the special

issue mimicked or served as a proxy for a consideration of the

evidence for the purposes of assessing the defendant’s culpability

and selection of the appropriate sentence for him and his crime.

For some jurists, this is a troublesome analysis or rationale, as

evidenced by the strong dissent by four of the Justices.22

Therefore, it is important to note that whether the special issue

adequately mimicked a comparative culpability analysis in Johnson

is largely a factual inquiry based on the character and

propensities of the defendant and the circumstances of the crime

Johnson, 509 U.S. at 369. “If any jurors believed that the transient qualities
of petitioner's youth made him less culpable for the murder, there is no
reasonable likelihood that those jurors would have deemed themselves foreclosed
from considering that in evaluating petitioner's future dangerousness.” Id. at
370. Consideration of the relevant qualities of petitioner's youth still
"allow[s] the jury to give effect to [this] mitigating evidence in making the
sentencing decision." Id. (internal citations omitted).

The jurors were required to "exercise a range of judgment and discretion."
Id. (citing, Adams v. Texas, 448 U.S. 38, 46, 100 S.Ct. 2521, 2527, 65 L.Ed.2d
581 (1980). "[A] Texas capital jury deliberating over the Special Issues is aware
of the consequences of its answers, and is likely to weigh mitigating evidence
as it formulates these answers in a manner similar to that employed by capital
juries in 'pure balancing' States." Id. at 370-371 (citing, Franklin v. Lynaugh,
487 U.S. 164, 182 (1988), n. 12 (plurality opinion)). “[T]he questions compel the
jury to make a moral judgment about the severity of the crime and the defendant's
culpability. The Texas statute directs the imposition of the death penalty only
after the jury has decided that the defendant's actions were sufficiently
egregious to warrant death." Id. at 371 (internal citations omitted).
“[C]onsideration of the second special issue is a comprehensive inquiry that is
more than a question of historical fact.” Id.

22
See Johnson v. Texas, 509 U.S. 350, 375 (1993) (O’Connor, J.,
Blackmun, J., Stevens, J., and Souter, J., dissenting).

33
in that particular case. The holding or legal rule of decision

in Johnson, which is controlling and applicable to the present

case for purposes of AEDPA, was simply that when the special

issues instruction raises the question of whether the jury was

precluded from considering and giving effect to the defendant’s

relevant mitigating evidence, the issue must be determined by

applying the Boyde reasonable likelihood test. The Court’s

subsequent straightforward application of the Boyde test in Penry

II without reference to Johnson or its extensive analysis of its

facts corroborates this conclusion.

E. States cannot preclude or constrain the selection of sentence.
States must empower and allow their capital sentencers to select
the sentence.

Subsequent to Penry I but prior to the CCA decision in the

present case, the Court in Buchanan v. Angelone, 522 U.S. 269,

276-77 (1998) reaffirmed the principle that a state must empower

and allow its capital sentencer to select either the death penalty

or life imprisonment according to an individualized assessment of

culpability level based on all of the defendant’s relevant

mitigating evidence. Buchanan declared that “[i]n the selection

phase, [Supreme Court] cases have established that the sentencer

may not be precluded from considering, and may not refuse to

consider, any constitutionally relevant mitigating evidence.” Id.

34
 at 276. It also reaffirmed that states do not have an unhindered

ability to create sentencing schemes as they see fit, and that to

be constitutional they must not “preclude the jury from giving

effect to any relevant mitigating evidence.”23 Id. The court also

made clear that the appropriate standard for assessing the

constitutionality of a jury instruction scheme is “whether there

is a reasonable likelihood that the jury has applied the

challenged instruction in a way that prevents the consideration

of constitutionally relevant evidence.” Id. (quoting Boyde v.

California, 494 U.S. 370 (1990)). Finally, the Court

distinguished Penry I from the facts of Buchanan, making clear

that Penry I involved a Texas special issues scheme where the

instructions “constrain[ed] the manner in which the jury was able

to give effect to mitigation.” 522 U.S. at 277.

VI. Penry II

23
See Roper v. Simmons, supra; see also Atkins, 536 U.S. at 352-53
(Scalia, J., dissenting): “Today's opinion adds one more to the long list of
substantive and procedural requirements impeding imposition of the death
penalty.... They include prohibition of the death penalty ...as the mandatory
punishment for any crime, Woodson v. North Carolina, 428 U.S. 280, 305 (1976)
(plurality opinion), Sumner v. Shuman, 483 U.S. 66, 77-78 (1987); a requirement
that the sentencer not be given unguided discretion, Furman v. Georgia, 408 U.S.
238 (1972) (per curiam), a requirement that the sentencer be empowered to take
into account all mitigating circumstances, Lockett v. Ohio, 438 U.S. 586, 604
(1978) (plurality opinion), Eddings v. Oklahoma, supra, at 110; and a requirement
that the accused receive a judicial evaluation of his claim of insanity before
the sentence can be executed, Ford, 477 U.S., at 410-411 (plurality opinion).”

35
A. A Texas special issues jury instruction is unconstitutional if

there is a reasonable likelihood it precluded the sentencer’s full

consideration or use of relevant mitigating evidence to assess the

defendant’s culpability or to select the appropriate sentence.

The Court in Penry II, in June 2001, reaffirmed its decision

in Penry I and many of the foregoing clearly established

principles of law. The Court held that, despite the state trial

court’s ineffectual attempt to fix the constitutional flaw pointed

out in Penry I, the Texas special issues instruction still

unconstitutionally prevented a sentencing jury from acting under

the Eighth Amendment to individually assess the level of each

offender’s culpability and to choose whether to impose or withhold

the death penalty based on that assessment. The Court reaffirmed

that when a defendant has introduced relevant mitigating evidence,

it creates a potential violation of the Eighth Amendment for a

state by use of a preclusive or constraining jury instruction to

interfere with the capital sentencer’s giving full consideration

and effect to that evidence by using it to make an individualized

assessment of the offender’s culpability level and to select

accordingly the appropriate sentence of death or life imprisonment

for that defendant. The court made it clear, moreover, that it was

enforcing its holding in Penry I which still meant the same thing

it stood for in 1989. The Court held:

36
Penry I did not hold that the mere mention of

"mitigating circumstances" to a capital sentencing jury

satisfies the Eighth Amendment. Nor does it stand for

the proposition that it is constitutionally sufficient

to inform the jury that it may "consider" mitigating

circumstances in deciding the appropriate sentence.

Rather, the key under Penry I is that the jury be able

to "consider and give effect to [a defendant's

mitigating] evidence in imposing sentence." 492 U.S. at

319 (emphasis added). See also Johnson v. Texas, 509

U.S. 350, 381, 113 S. Ct. 2658, 125 L.Ed.2d 290 (1993)

(O’Connor, J., dissenting) ("[A] sentencer [must] be

allowed to give full consideration and full effect to

mitigating circumstances" (emphasis in original)). For

it is only when the jury is given a "vehicle for

expressing its 'reasoned moral response' to that

evidence in rendering its sentencing decision," Penry

I, 492 U.S. at 328, that we can be sure that the jury

"has treated the defendant as a 'uniquely individual

human bein[g]' and has made a reliable determination

that death is the appropriate sentence," Id. at 319

(quoting Woodson v. North Carolina, 428 U.S. 280, 304,

305, 96 S. Ct. 2978, 49 L.Ed.2d 944 (1976)).

37
 The Court in Penry II also reaffirmed and clearly established

the requirement that, when the defendant introduces mitigating

evidence relevant to the capital sentencer’s assessment of the

culpability of the defendant and the selection of the appropriate

sentence, and the State’s jury instruction may have precluded or

constrained the sentencer’s selection, the reviewing court must

apply the Boyde reasonable likelihood test to determine whether

there was an Eighth Amendment violation. See Penry II, 532 U.S.

at 800. (“There is, at the very least, ‘a reasonable likelihood

that the jury ... applied the challenged instruction in a way that

prevent[ed] the consideration’ of Penry's mental retardation and

childhood abuse. Boyde v. California, 494 U.S. 370, 380 (1990).

The supplemental instruction therefore provided an inadequate

vehicle for the jury to make a reasoned moral response to Penry's

mitigating evidence.”).

B. Because the Texas special issues instruction does not enable

or permit the sentencer to select the appropriate sentence, the

reasonable likelihood test must be applied by asking whether there

is a reasonable likelihood that the instruction precluded the

sentencer from considering relevant mitigating evidence or

selecting the appropriate sentence.

38
 In Boyde v. California, 494 U.S. 370 (1990) the Court held

(1)that the Eighth Amendment requires that the jury be able to

consider and give effect to all relevant mitigating evidence

offered by petitioner. (citing Lockett v. Ohio, 438 U.S. 586

(1978); Eddings v. Oklahoma, 455 U.S. 104 (1982); and Penry I, 492

U.S. 302 (1989)) and (2) when it is claimed that a jury

instruction is ambiguous and therefore subject to an erroneous

interpretation, the proper inquiry is whether there is a

reasonable likelihood that the jury applied the challenged

instruction in a way that prevented the consideration of

constitutionally relevant evidence. Although a defendant need not

establish that the jury was more likely than not to have been

impermissibly inhibited by the instruction, a capital sentencing

proceeding is not inconsistent with the Eighth Amendment if there

is only a possibility of such an inhibition. In Boyde, in which

the Court first formulated the reasonable likelihood test for use

in determining whether an ambiguous instruction had impermissibly

limited the jury’s consideration of the mitigating evidence, there

was no contention that the instruction did not allow the sentencer

to choose between life imprisonment and death as the appropriate

sentence in the case; at issue in that case was only the

antecedent question of whether the instruction had precluded the

sentencer from fully considering all of the relevant mitigating

39
evidence in assessing culpability. Thus, although the Court

declared repeatedly throughout the opinion that the Eighth

Amendment requires that the jury be able to give effect, as well

as consider, all relevant evidence, in its final analysis the

Court focused on the specific issue in the case by asking, in

essence, whether there was a reasonable likelihood that the jury

was prevented from fully considering relevant mitigating evidence.

There was no need or reason for the Court to inquire into whether

the sentencer was precluded from giving full effect to the

evidence by selecting what it considered to be the appropriate

sentence.

Consequently, in a case in which the instruction arguably

interfered directly with the sentencer’s selection of the sentence

as well as with its consideration of the relevant mitigating

evidence, it is self -evident that the reviewing court must apply

the reasonable likelihood test to each alleged error, i.e., it

must ask whether there is a reasonable likelihood that the

sentencer was precluded from (1) giving the evidence full

consideration in assessing culpability or (2) giving the evidence

full effect by selecting the sentence based on its assessment of

culpability. Otherwise, its review of the assigned errors would

not be complete and the defendant would have been

unconstitutionally deprived of his right to have prejudicial error

40
corrected on review. See Estelle v. McGuire, 502 U.S. 62 (1991)

(“In reviewing an ambiguous jury instruction ...we inquire

‘whether there is a reasonable likelihood that the jury has

applied the challenged instruction in a way’ that violates the

Constitution.”).

This reading of Chief Justice Rehnquist’s opinion in Boyde

is fully corroborated by his opinion for the Court in Buchanan.

In Buchanan, although the Court held that a state is not required

to affirmatively instruct juries in a particular way on the manner

in which mitigation evidence is to be considered, the Court also

made clear that while the state may shape and structure the jury's

consideration of mitigation, it may not “preclude the jury from

giving effect to any relevant mitigating evidence.” 522 U.S. at

276 (citing Johnson, 509 U.S. at 362; Penry I, 492 U.S. at 326;

Franklin, 487 U.S. at 181). “Our consistent concern has been that

restrictions on the jury's sentencing determination not preclude

the jury from being able to give effect to mitigating evidence.”

Id. And the Chief Justice clearly contrasted Penry I as a case

in which the Texas special issues constrained the manner in which

the jury was able to give effect to the mitigation evidence by

selecting the sentence. He stated:

The jury instruction [in Boyde] did not violate those

constitutional principles. The instruction did not

41
 foreclose the jury's consideration of any mitigating

evidence. By directing the jury to base its decision on

“all the evidence,” the instruction afforded jurors an

opportunity to consider mitigating evidence. The

instruction informed the jurors that if they found the

aggravating factor proved beyond a reasonable doubt

then they “may fix” the penalty at death, but directed

that if they believed that all the evidence justified

a lesser sentence then they “shall” impose a life

sentence. The jury was thus allowed to impose a life

sentence even if it found the aggravating factor

proved. Moreover, in contrast to the Texas special

issues scheme in question in Penry, supra, at 326, 109

S.Ct., at 2951, the instructions here did not constrain

the manner in which the jury was able to give effect to

mitigation. Id. at 762 (footnote omitted)(emphasis

added).

Thus, Buchanan strongly reaffirmed the holding of Penry I that the

Texas special issue jury instruction failed to provide a

constitutionally adequate vehicle for jurors to both consider the

relevant mitigating evidence by assessing the defendant’s

culpability and give effect to that evidence by selecting the

appropriate sentence for the defendant and his crime.

42
 VII. Analysis

A. Texas Court of Criminal Appeals Decision

On October 10, 2001, the Texas Court of Criminal Appeals

denied Nelson relief on his post conviction habeas claim, adopting

the findings of fact and conclusions of law and recommendation of

the Texas trial court that relief be denied.

The order of the state habeas trial court reflects, with

respect to Nelson’s Penry claim, that Nelson contended that he was

denied his constitutional rights under the Texas Constitution and

the Eighth and Fourteenth Amendments because Article 37.071

V.A.C.C.P. (1985) failed to ensure the consideration of mitigating

evidence by the jury on punishment in the absence of jury

instructions as to how mitigating evidence should be considered

in answering the special punishment issues.

The state habeas trial court acknowledged that Nelson

requested at trial that the court submit a special charge to the

jury on mitigating evidence. The state habeas court acknowledged

that in order for a death penalty procedure to meet the

requirements of the Constitution of the United States, the death

penalty procedure must allow the jury to consider all relevant

43
mitigating evidence, citing Lockett v. Ohio; that where the jury

is unable to give effect in their verdict to mitigating evidence

presented by the defendant in a capital case, the death penalty

procedure is unconstitutional as applied to the defendant; and

that where mitigating evidence presented by the defendant is

beyond the scope of the special issues and the jury is thus unable

to give effect to their reasonable moral response to that evidence

in their verdict, the death penalty is unconstitutional as applied

to the defendant, citing Franklin v. Lynaugh, 487 U.S. 164 (1988);

Penry v. Lynaugh, 492 U.S. 302 (1989).

The state habeas trial court concluded that a jury is able

to give effect to mitigating evidence of acts of kindness,

compassion, and love through the special issue of whether there

is a probability that the defendant would commit future acts of

criminal violence, and thus such evidence is not beyond the scope

of the special issues, citing only state cases; likewise, the

court held that evidence that Nelson was a good worker; polite,

kind, and helpful; respectful; and was someone who treated

children well was not beyond the scope of the future violence

special issue, and no additional instruction was needed, citing

a state case. The court further concluded that evidence that

Nelson was a hard worker who loses control only under the

influence of alcohol and controlled substances does not reduce

44
blameworthiness and appears to be more aggravating then

mitigating, with no citation of authority; the court noted that

the trial court had instructed the jury to consider and give

effect in answering each issue to your evaluation of all of the

evidence and concluded that the jury charge and the special issues

allowed the jury to give effect to all mitigating evidence in

their answers including intoxication at the time of the offense,

citing state cases; the court cited state court authority that

voluntary intoxication has no mitigating significance beyond the

scope of the special issues.

Nelson demonstrates from the record, however, that he

introduced mitigating evidence he summarizes as follows:

...Dr. Hickman, the psychiatrist retained by
petitioner, testified that he spent approximately six
hours evaluating and testing petitioner. He testified
that petitioner suffers from alcohol and cocaine
addiction and has since the age of thirteen years.
There is a realistic possibility that petitioner
suffers from brain damage. Finally, Dr. Hickman
testified that petitioner suffers from a Borderline
Personality Disorder. According to Dr. Hickman,
petitioner would function normally for seventy-five or
eighty percent of the time, but will exhibit symptoms
of the mental disorder at other times. Because of the
mental illness, petitioner will “periodically go
through an outburst of feelings which can become very
violent, become very destructive. Not to others, mostly
to themselves.” Dr. Hickman testified this mental
illness often renders a person unable to process how
they are feeling and leads to drinking and drug
behavior. In other words, this illness impacts on an

45
 individual’s ability to control their own impulses.
Untreated, petitioner’s illness has many dangers. But
Dr. Hickman testified that petitioner’s illness is
treatable. In fact, Dr. Hickman suggested petitioner be
treated for his alcohol and cocaine addiction in
conjunction with the treatment for Borderline
Personality Disorder. According to Dr. Hickman, if one
problem is cured, the chances are improved for curing
the other problem. Dr. Hickman recommended that
petitioner receive incarceration and psychotherapy to
learn to identify and process emotions. He further
believes petitioner treatment will require medication.
If petitioner is provided this treatment and
circumstances, Dr. Hickman stated that the likelihood
of future violent behavior “goes way, way down, if not
eliminated.” Petitioner’s father testified that
petitioner’s mother did not accept him since his birth.
Apparently she wanted a girl and was angry because
petitioner was male. Petitioner attended several
different schools. After his mother and father divorced
and petitioner never completed school. His mother
refused to take him with her. Petitioner later had a
child in an unwedded relationship, but has been unable
to maintain a relationship with his own child.
Petitioner later became addicted to cocaine and
alcohol. His father and family worked to help
petitioner get past his drug addiction and petitioner’s
father thought they had done so. Indeed he was intent
on helping petitioner with his alcohol addiction.
Before this offense petitioner was never convicted
of a felony. On the day this occurred petitioner was
drinking. His father knew petitioner was drinking
heavily and was intoxicated. He also appeared to have
relapsed and using cocaine. Mr. Nelson observed petitioner prior
to his statements and thought petitioner’s intoxication was
obvious.

The State admits that Nelson introduced mitigating

evidence summarized as follows:

(1) Nelson was rejected by his mother.

(2) Nelson abused drugs and alcohol.

46
 (3) Nelson has troubled relationships with his brother

and with women. Nelson had an illegitimate child with

a girlfriend; Nelson was not allowed to have a

relationship with that child.

(4) A psychiatrist testified that Nelson had a drug and

alcohol addiction problem and that he was suffering

from a borderline personality disorder. The

psychiatrist further testified that Nelson’s

personality disorder was treatable.

B. Parties’ Arguments

Nelson contends that he introduced relevant mitigating

evidence that could serve as a basis for a sentence of less than

death, citing Skipper, 476 U.S. at 5-8, and that his rights were

violated because there was no additional vehicle provided for the

full consideration and full effect of his evidence as required by

Penry I. Specifically, Nelson points to the testimony of a

psychiatrist that Nelson suffered from an organic brain disorder,

became violent and destructive because of his background, and

needed intense psychotherapy.

The State responds by urging the reasons and authorities

relied upon by the federal habeas district court for rejecting

Nelson’s arguments, citing Penry I and Johnson for the idea that

47
Nelson had not demonstrated that the proffered evidence was beyond

the scope or the effective reach of the jury, and cites to a

number of Fifth Circuit cases which have held that evidence

similar to Nelson’s is within the scope of the Texas special

issues.

C. Rationales of Chief Judge Jones’ Opinion

Chief Judge Jones’ opinion would affirm the death penalty in

this case on two alternate grounds: (1) that all of the mitigating

evidence offered by Nelson was within the effective reach of the

jury in arriving at its answers to the special issues; and (2)

that only the evidence of Nelson’s borderline personality disorder

was not fully considered and given effect under the special

issues, but that evidence was scanty and could not warrant a

sentence less than death.

The first proposed holding, similar to that of our first

panel opinion, does not undertake a fresh analysis; it simply

applies prior Fifth Circuit decisions and concludes that all of

Nelson’s mitigating evidence was either not relevant or that it

was given full consideration and full effect by the jury in

answering the special issues. See Burgess v. Dretke, 350 F.3d 461,

469 (5th Cir. 2003) (“[W]e may grant relief only for a violation

of ‘clearly established’ federal law ,as determined by the Supreme

48
 Court of the United States. A decision by one of our sister

circuits, even if compelling and well-reasoned, cannot satisfy the

requirements under § 2254(d)(1).”(footnotes omitted)).

The second alternative proposed holding only partially

undertakes the analysis required by Penry I & II and its progeny.

It concludes, first, that substantially all of Nelson’s mitigating

evidence was relevant, but, second, that the special issues

instruction only precluded the jury from giving full consideration

and full effect to the mitigating evidence of Nelson’s borderline

personality disorder,24 and, third, that the borderline personality

24
The only Supreme Court case cited by the opinion for this point is
Graham v. Collins, a case involving family background evidence. 506 U.S. 461, 476
(1993). However, because of this case’s procedural posture, it provides no
support for the claim by the opinion that family background evidence is within
the scope of the Texas special issues. Graham was a federal habeas corpus
proceeding in which the Court concluded that the relief sought was not “‘dictated
by precedent’” and therefore not available on collateral review. 506 U.S. at 467;
Brecht v. Abrahamson, 507 U.S. 619, 630 (1993) (holding that cases applying the
Chapman rule on direct review were not binding through stare decisis on
collateral review because of the differences between the two); Wright v. West,
505 U.S. 277, 292-93 (1992) (noting that “the notion that different standards
should apply on direct and collateral review runs throughout our recent habeas
jurisprudence”). Graham is therefore inapplicable here because cases on
collateral review that reject a claim as requiring a new rule are, at best,
persuasive authority on direct review. Johnson, 509 U.S. at 366. In fact, the
Graham opinion is explicit on this point. The Graham Court was limited by the
Teague rule against announcing new principles of constitutional law on collateral
review. Graham, 506 U.S. at 466-67; see also Teague v. Lane, 489 U.S. 288 (1989).
The primary focus of the Court’s inquiry in Graham was on whether reasonable
jurists could agree that Penry I dictated the relief sought by Graham and was
thus an existing principle of constitutional law. Graham, 506 U.S. at 476. The
Graham Court expressly avoided making any holdings on the interpretation of Penry
I. In Graham, “the determinative question [was] whether reasonable jurists
reading the case law that existed in 1984 could have concluded that Graham’s
sentencing was not constitutionally infirm.” Dicta aside, the Court made an
extremely narrow holding - it decided the case on the grounds that it “cannot say
that all reasonable jurists would have deemed themselves compelled to accept
Graham’s claim in 1984.” Id. As discussed above, the case law in this area has

49
 disorder evidence was so scanty and insufficient that a reasonable

jury could not have found that a sentence less than death was

warranted based on all of the evidence in the case.

This analysis only partially acknowledges and applies the

relevance analysis required by Penry I & II; it does not fully

inform itself of the applicable federal law clearly established

by the Supreme Court’s jurisprudence or fully analyze the

pertinent state court decision to determine whether it is contrary

to or an unreasonable application of that law. Although the Chief

Judge’s opinion arrives at the correct judgment in this case, I

believe that AEDPA requires a more extensive analysis.

Accordingly, I will set forth what I believe to be the correct

appreciation of the federal law clearly established at the time

of the CCA’s decision and apply it to the CCA decision and

ultimately to the record in this case.

D. Clearly Established Federal Law

1. Pertinent Clearly Established Federal Law

The foregoing survey confirms that, when the CCA denied

Nelson habeas relief on his Penry claim on October 10, 2001,

changed significantly in the years since 1984. The limited decision in Graham has
no relevance to the current state of Supreme Court law.

50
federal law clearly established by the Supreme Court required a

state to (1) empower its capital sentencer to (a) give full

consideration and effect to all of the defendant’s relevant

mitigating evidence; (b) make an individualized assessment of the

level of the defendant’s moral culpability and deathworthiness;

and (c) select the appropriate sentence of either life

imprisonment or death for each convicted defendant based on that

assessment in light of all of the relevant evidence in the case;

and (2) refrain from interfering with the capital sentencer’s

performance of this constitutionally protected function.

Before the time of the CCA’s decision on October 10, 2001,

the Supreme Court in 1989 in Penry I had clearly established that

underlying Lockett and Eddings is the principle that punishment

should be directly related to the personal culpability of the

criminal defendant; and that in order for the sentencer to make

an individualized assessment of the appropriateness of the death

penalty, evidence about the defendant's background and character

is relevant. Penry I, 492 U.S. at 319. Moreover, the Penry I

court decided that Eddings had made clear that it is not enough

simply to allow the defendant to present mitigating evidence to

the sentencer. The sentencer must also be able to consider and

give effect to that evidence in imposing sentence. Id. (citing

Hitchcock v. Dugger, 481 U.S. 393 (1987)). Only then can the

51
courts be sure that the sentencer has treated the defendant as a

“uniquely individual human bein[g]” and has made a reliable

determination that death is the appropriate sentence. Id. (citing

Woodson, 428 U.S. at 304, 305). Indeed, the Court in Penry I held,

“it is precisely because the punishment should be directly related

to the personal culpability of the defendant that the jury must

be allowed to consider and give effect to mitigating evidence

relevant to a defendant's character or record or the circumstances

of the offense.” Id. at 327-328. Further, the Court in Penry I

established that, “in order to ensure ‘reliability in the

determination that death is the appropriate punishment in a

specific case,’ the jury must be able to consider and give effect

to any mitigating evidence relevant to a defendant's background

and character or the circumstances of the crime.” Id. at 328

(citing Woodson, 428 U.S. at 305). Consequently, the Court

clearly established that under the Texas special issues

instruction:

“in the absence of additional instructions informing
the jury that it could consider and give effect to
the defendant’s relevant evidence by declining to
impose the death penalty, ... the jury was not
provided with a vehicle for expressing its reasoned
moral response to that evidence in rendering its
sentencing decision, and [the federal law previously
clearly established by Lockett and Eddings] thus
compels a remand for resentencing so that we do not
risk that the death penalty will be imposed in spite
of factors which may call for a less severe penalty.”

52
 Id. (citing Lockett, 438 U.S. at 605; Eddings, 455
U.S. at 119).

In 1990 the Supreme Court in McKoy v. North Carolina, 494

U.S. 433, 440 (1990), made it clearly established, if it had not

been before, that the meaning of relevance is no different in the

context of mitigating evidence introduced in a capital sentencing

proceeding than in any other context, and thus the general

evidentiary standard - “‘any tendency to make the existence of any

fact that is of consequence to the determination of the action

more probable or less probable than it would be without the

evidence’” applies. (quoting New Jersey v. T.L. O., 469 U.S. 325

(1985); paraphrasing and citing Federal Rule of Evidence 401 in

a Fourth Amendment case). Further, the Court in McKoy also

clearly established that the Constitution requires States to allow

consideration of mitigating evidence in capital cases, and any

barrier to such consideration must therefore fall. Id. at 442-43

(citing and quoting Mills v. Maryland, 486 U.S. at 375). Finally,

the Court in McKoy established that its holdings in Skipper and

Eddings, show that the mere declaration that evidence is “legally

irrelevant” to mitigation cannot bar the consideration of that

evidence if the sentencer could reasonably find that it warrants

a sentence less than death; and that the meaning of relevance is

no different in the context of mitigating evidence introduced in

53
a capital sentencing proceeding.

Also in 1990, the Court in Boyde v. California, 494 U.S. 370

(1990), reaffirmed the clearly established principle that

“evidence about the defendant's background and character is

relevant because of the belief, long held by this society, that

defendants who commit criminal acts that are attributable to a

disadvantaged background, or to emotional and mental problems, may

be less culpable than defendants who have no such excuse.” Id. at

382. Further, in Boyde, the Supreme Court reaffirmed the clearly

established principle that when the defendant introduces relevant

mitigating evidence, the Eighth Amendment requires that the jury

be able to consider and give effect to that mitigating evidence.

Id. at 285 (citing Lockett v. Ohio, 438 U.S. 586 (1978); Eddings

v. Oklahoma, 455 U.S. 104 (1982); Penry I, 492 U.S. 302 (1989).

On June 4, 2001, some four months prior to the CCA’s

decision, the Supreme Court, in Penry II, made the principles

clearly established by its decision in Penry I, even more firm and

clear:

Penry I did not hold that the mere mention of
“mitigating circumstances” to a capital sentencing jury
satisfies the Eighth Amendment. Nor does it stand for
the proposition that it is constitutionally sufficient
to inform the jury that it may “consider” mitigating
circumstances in deciding the appropriate sentence.
Rather, the key under Penry I is that the jury be able
to “consider and give effect to [a defendant's
mitigating] evidence in imposing sentence.” 492 U.S.,

54
 at 319, 109 S.Ct. 2934 (emphasis added). See also
Johnson v. Texas, 509 U.S. 350, 381, 113 S.Ct. 2658,
125 L.Ed.2d 290 (1993) (O'Connor, J., dissenting) (“[A]
sentencer [must] be allowed to give full consideration
and full effect to mitigating circumstances” (emphasis
in original)).

For it is only when the jury is given a “vehicle for

expressing its ‘reasoned moral response’ to that evidence in

rendering its sentencing decision,” Penry I, 492 U.S., at 328, 109

S.Ct. 2934, that we can be sure that the jury has treated the

defendant as a ‘uniquely individual human bein[g]’ and has made

a reliable determination that death is the appropriate sentence.

Id. at 319, 109 S.Ct. 2934 (quoting Woodson v. North Carolina, 428

U.S. 280, 304, 305 (1976)).

In 1991, in Payne v. Tennessee, 501 U.S. 808, 824 (1991) the

Court declared that “States cannot limit the sentencer's

consideration of any relevant circumstance that could cause it to

decline to impose the penalty. In this respect, the State cannot

challenge the sentencer's discretion, but must allow it to

consider any relevant information offered by the defendant.” Id.

(citing McCleskey v. Kemp, 481 U.S. 279, 305-306 (1987): “[b]eyond

these limitations ... the Court has deferred to the State's choice

of substantive factors relevant States cannot limit the

sentencer's consideration of any relevant circumstance that could

cause it to decline to impose the penalty. California v. Ramos,

55
 463 U.S. 992, 1001, 103 S.Ct. 3446, 3453, 77 L.Ed.2d 1171

(1983).”).

In 1998, in Buchanan v. Angelone, 522 U.S. at 276-277, the

Court reaffirmed the clearly established principle that the

capital sentencer may not be precluded from giving effect to

relevant mitigating evidence by selecting the appropriate

sentence; and that the sentencer may not be precluded from

considering, and may not refuse to consider, any constitutionally

relevant mitigating evidence. Id. (citing Penry v. Lynaugh, 492

U.S. 302, 317-318 (1989); Eddings v. Oklahoma, 455 U.S. 104,

113-114 (1982); Lockett v. Ohio, 438 U.S. 586, 604 (1978)).

2. Applying Clearly Established Principles of Federal Law

Applying the foregoing clearly established principles of

federal law, I conclude that the Texas special issues instruction

caused at least two potential constitutional violations under the

federal law clearly established by the Supreme Court’s cases.25

Each of these potential violations has been described in more than

one way or level of depth by the Supreme Court’s cases. Under the

most often repeated analysis and language of Penry I and its

25
I call them “potential” violations because even though they appear
to be clear breaches of the constitutional requirements imposed on the State, a
reviewing court is required to apply the Boyde reasonable likelihood test to
determine if there was a true or actual violation.

56
progeny, the special issues instruction violated Nelson’s

constitutional rights by precluding the jury from fully

considering and fully giving effect to Nelson’s relevant

mitigating evidence. Furthermore, the fundamental significance

of that lack of full consideration and full effect is also

described in Penry I and other Supreme Court cases as follows: the

special issues instruction potentially violated clearly

established federal law protecting Nelson’s rights by precluding

the jury from fully considering his relevant mitigating evidence

in assessing his culpability and in selecting the appropriate

sentence on the basis of that assessment and all of the record

evidence. Thus, the violations also may be described and discussed

as the State’s failure under clearly established federal law to

enable and allow the jury to consider and use the relevant

mitigating evidence for the purpose of assessing Nelson’s

culpability and selecting the appropriate individualized sentence

for him and his crime.

Each of the violations stems from the reality that under the

Texas special issues instruction the jury was only enabled to

consider the mitigating evidence for the purpose of answering the

special issues interrogatories as to whether Nelson’s crime was

deliberate and whether he will be dangerous in the future. Much

less than being enabled and allowed to give full effect to

57
Nelson’s mitigation evidence, his jury was authorized to give very

limited effect to it because the jury was not enabled or allowed

to select the appropriate sentence. Because the jury lacked the

ability to select the sentence, there was no reason for it to

assess or even advert to the degree of Nelson’s culpability as

compared to other murderers. In other words, because the jury was

only called upon to answer two relatively simple yes or no

questions, there is no reason to suppose that it could or would

consider the evidence for the complex purpose of assessing the

comparative level of Nelson’s culpability. Under the special

issue instruction the jury is in a position similar to that of a

voter who is allowed to consider the candidates but not allowed

to vote. Neither the voter nor the jury is realistically able to

consider the evidence for the purpose of making the choice in

which they are not allowed to participate. In sum, Nelson’s jurors

were allowed to give the mitigation evidence only the restricted

effect of answering the special issues, not the full effect of

selecting the appropriate sentence; thus it cannot honestly be

assumed that the jury was realistically able to give the evidence

more than the limited consideration necessary for that purpose,

not the full consideration that jurors would have given it had

they been empowered and allowed to select the appropriate

sentence.

58
 Each of the arguments that have been presented by the State

for upholding a death penalty that was not selected by the capital

sentencer based on the sentencer’s assessment of the defendant’s

culpability conflicts with the clearly established principles of

federal law and in the final analysis simply begs the question.

When the capital sentencer cannot and does not knowingly choose

the sentence based on its assessment of the defendant’s

culpability the sentencing process is contrary to the clearly

established requirements of individualized sentencing in which the

sentencer must be enabled and allowed to select the appropriate

sentence on the basis of the sentencer’s assessment of the

defendant’s culpability informed by a full consideration of all

of the defendant’s relevant mitigating evidence. When the

arguments or reasons for avoiding this conclusion are carefully

analyzed, they usually reveal themselves as some form of question

begging; that is, they either assume a desired alternate

conclusion as part of the reason for preferring it or they assume

a new rule of law that requires the desired result. In the Penry

claim cases the circular arguments to the effect that the

defendant’s relevant mitigating evidence could be reached by or

were within the scope of the special issues, when stripped of

pretenses of logic and non-sequiturs, are built on the desired

conclusion itself, viz., that the special issues instruction

59
provided a constitutionally adequate vehicle for individualized

sentencing, are devoid of logical demonstration based on concrete

evidence. In the Penry cases also, the state and federal

appellate courts have created threshold and screening rules, such

as the unique severity and nexus rules or constitutional relevance

rule, which serve to cut off appellate review and avoid the

difficulty of confronting whether a fully enabled capital

sentencer, rather than a sentencer in name only, would have

selected the death penalty had it been authorized to choose

between that and a life imprisonment sentence. These arguments

and rules are contrary to the clearly established jurisprudence

of the Supreme Court prevailing well before the CCA’s decision in

this case. As noted earlier in this opinion, the Court in McKoy

clearly established as early as 1990 that states cannot distort

or skew the principle of relevance underlying Federal Rule of

Evidence 401 to limit the introduction, consideration and use of

relevant mitigating evidence in capital cases. The Supreme Court

has never approved mere specious, circular arguments as

justification for concluding that the special issues reached or

fully accommodated a defendant’s relevant mitigating evidence.

For example, the Court in Johnson upheld a death penalty obtained

under the special issue instruction, but it did not do so on the

basis or a screening rule or conclusory or circular reasoning.

60
Instead, the Court first indicated that the special issue

instruction had raised the issue of whether there had been a

constitutional violation. Then, the Court in Johnson adopted and

applied the Boyde reasonable likelihood test to the record in the

case to determine if in reality there had been an Eighth Amendment

transgression. The Court went to great lengths to demonstrate

rationally that the jurors’ mental process in deciding the answer

to the special issues instruction mimicked or was sufficiently

similar to that of a reasonable jury’s culpability assessment so

that there was not a reasonable likelihood that the special issue

instruction had caused an Eighth Amendment violation.

In this case, the State was required to enable and allow the

capital sentencing jury to fully consider and give full effect to

all of Nelson’s relevant mitigating evidence. Under the Supreme

Court’s clearly established jurisprudence the sentencing jury must

be able to consider fully all of the defendant’s mitigating

evidence, assess his level of culpability and just desert, and

select the appropriate sentence of life imprisonment or death

based on that assessment. The Court’s cases also clearly establish

that according to the general principle of relevance underlying

the Federal Rules of Evidence, relevant evidence is any evidence

that tends to make a matter of consequence to the outcome of the

action more or less likely than it would be without that evidence.

61
In a capital sentencing proceeding the level of the defendant’s

culpability or deathworthiness is a matter of consequence to the

outcome of the case because if the capital sentencer should be

persuaded that the defendant’s culpability is sufficiently

diminished the sentencer will be more likely to select life

imprisonment rather than the death penalty as the appropriate

sentence for that defendant. Nelson introduced mitigating

evidence consisting of a psychiatrist’s testimony that he suffered

from a borderline personality disorder and drug and alcohol

addiction; evidence of abandonment by his mother at a young age,

his troubled relationships with women and his brother, and his not

being allowed to have a relationship with his illegitimate child.

Each item of this evidence was relevant and had at least some

mitigating value because each item tended to make more likely than

would have been the case without it that the jurors would find

that Nelson’s level of culpability was lower than that of a

similarly situated normal person. Under F.R.E. 401 and the

universally accepted principle of relevance, it does not matter

whether one item alone could persuade a reasonable juror to vote

to impose a sentence of less than death. It is sufficient for

purposes of having the jurors consider and possibly give effect

to that evidence that it has a tendency to mitigate the

defendant’s culpability in the eyes of the jurors.

62
 The State, its legislature or its courts, or a combination

of them, did not comply with the requirements imposed by the

constitution to regulate the administration of the death penalty

in accordance with the clearly established jurisprudence of the

Supreme Court. The capital sentencer, the jury in this case, was

not enabled to fully consider and to give full effect to Nelson’s

relevant mitigating evidence. Although, the jury was permitted to

hear and see the evidence, it was allowed to consider the evidence

only for the purpose of answering the two special issues, viz.,

was the murder deliberate; and will the defendant be a danger to

society in the future. Thus, the jury was neither enabled or

allowed to fully consider the evidence for the purposes of

performing the constitutionally protected functions of

individualized sentencing; its consideration of the evidence was

authorized and allowed only for a highly limited purpose.

Likewise, the jury was not authorized or allowed to give full

effect to the evidence because that would have required that the

jury be allowed to assess the level of culpability of the

defendant and to select the appropriate penalty based on that

assessment.

A state court’s ruling constitutes an unreasonable

application of clearly established federal law if it “correctly

identifies the governing legal rule but applies it unreasonably

63
to the facts of a particular prisoner’s case.” Williams, 529 U.S.

at 407-08. Here, the state district court correctly identified the

holdings in Penry I and its progeny as supplying the clearly

established federal law that governs this case. That is, the

state court’s conclusion of law, which the CCA adopted,

acknowledged that Penry I required a State to enable its capital

sentencing jury to fully consider and fully give effect to all of

the defendant’s relevant mitigating evidence. But that court then

applied that federal law unreasonably by ruling that the special

issues instruction given in Nelson’s case, which was substantially

the same as that used in Penry I, allowed the jury to fully

consider and fully give effect to all of Nelson’s relevant

mitigating evidence. For the reasons given earlier in detail, it

was objectively unreasonable for the Texas court to conclude that

the special issues instruction enabled or allowed the sentencing

jury to give full consideration and full effect to Nelson’s

relevant mitigating evidence. The special issues instruction did

not empower or permit the jury to give any consideration to that

evidence for the purpose of assessing Nelson’s culpability or his

deathworthiness, and it did not enable or allow the jury to give

any effect to that evidence by selecting the sentence to be

imposed according to that assessment and all of the evidence in

the case.

64
 3. Applying the Boyde Reasonable Likelihood Test
Under the federal law clearly established by the Supreme

Court’s decisions in Penry I, McKoy, Boyde, Penry II and Buchanan,

and others, when a capital sentencing jury is given an instruction

that may have precluded or constrained it from giving full

consideration or effect to the defendant’s relevant mitigating

evidence, we are required to apply the reasonable likelihood test

to determine whether an Eighth Amendment violation occurred. For

the reasons explained earlier in this opinion, because of the

deficiency peculiar to the pre-1991 Texas special issues

instruction, that is, the absence of the capital sentencer’s

ability to make its own choice in selecting the appropriate

sentence, there is a significant possibility that two violations

occurred, that is, that the jury was not enabled or allowed to

either fully consider the relevant mitigating evidence for the

purpose of assessing culpability or fully give effect to the

mitigating evidence by selecting the appropriate sentence.

Accordingly, this court is required to determine whether there is

a reasonable likelihood that the special issue instruction had

either effect. In my opinion, it is plain that there is not merely

a reasonable likelihood but a certainty that the jury was

precluded from fully performing both functions. The jurors were

65
simply not enabled or allowed to select a sentence of life

imprisonment or death on the basis of their assessment of the

defendant’s culpability, and, correspondingly, the jurors were not

enabled or allowed to consider the mitigating evidence for the

purpose of comparatively assessing the defendant’s culpability

because the special issues instruction did not assign them any

task or function that realistically required that assessment.

Consequently, I must conclude that Nelson’s rights under the

Eighth and Fourteenth Amendments as clearly established by the

Supreme Court’s decisions were abridged.

4. Applying the Brecht Harmless Error Test

Although the special issues jury instruction violated

Nelson’s rights under the Eighth and Fourteenth Amendments

according to federal law clearly established by the Supreme

Court’s cases, that error would justify overturning Nelson’s

sentence only if Nelson could establish that the error “‘had

substantial and injurious effect or influence in determining the

jury's verdict.’” Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)

(quoting Kotteakos v. United States, 328 U.S. 750 (1946)). And

the Supreme Court further admonished:

This standard reflects the “presumption of finality and
legality” that attaches to a conviction at the
conclusion of direct review. 507 U.S., at 633, 113

66
 S.Ct. 1710. It protects the State's sovereign interest
in punishing offenders and its “good-faith attempts to
honor constitutional rights,” id., at 635, 113 S.Ct.
1710, while ensuring that the extraordinary remedy of
habeas corpus is available to those “ ‘whom society has
grievously wronged,’ ” id., at 634, 113 S.Ct. 1710
(quoting Fay v. Noia, 372 U.S. 391, 440-441, 83 S.Ct.
822, 9 L.Ed.2d 837 (1963)).

A federal court upsets this careful balance when it
sets aside a state-court conviction or sentence without
first determining that the error had a substantial and
injurious effect on the jury's verdict. The social
costs of retrial or resentencing are significant, and
the attendant difficulties are acute in cases such as
this one, where the original sentencing hearing took
place in November 1981, some 17 years ago. No.
C89-1906, App. to Pet. for Cert. A-101, n. 45. The
State is not to be put to this arduous task based on
mere speculation that the defendant was prejudiced by
trial error; the court must find that the defendant was
actually prejudiced by the error. Brecht, supra, at
637, 113 S.Ct. 1710. As a consequence, once the Court
of Appeals determined that the giving of the Briggs
instruction was constitutional error, it was bound to
apply the harmless-error analysis mandated by Brecht.

Calderon v. Coleman, 525 U.S. 141 (1998).

Considering the gravity of the Supreme Court’s admonitions,

we must take into careful consideration the likely effect that

Nelson’s crimes as well as his mitigating evidence may have had

if the jury had been empowered to give full consideration and full

effect to all of the evidence. Nelson’s crimes were unprovoked,

uninvited, inexcusable, and incomprehensible. Nelson murdered

Charla M. Wheat and attempted to murder Wheat's roommate Carol

Maynard in their home on the night of February 23, 1991. Mrs.

67
Maynard, whose husband was in the armed forces in Saudi Arabia

during Desert Storm, was 20 years old and 5 months pregnant. Ms.

Wheat was 18 years old and single. Nelson lived across the street

with his common law wife. In one of his confessions which was

introduced into evidence he said he was “skitzing” on cocaine and

that he went over to their house in the early morning hours “to

get a piece of ass.” When he arrived, Mrs. Maynard had gone to

bed but Ms. Wheat was in the living room awaiting a phone call

from her boyfriend. He asked to use the phone and Ms. Wheat let

him in. As she was bending over to get the phone he grabbed her,

pulled out a knife and cut the phone cord. She screamed and he

either knocked her to the floor or stabbed her, or both. He went

to the bedroom, grabbed Mrs. Maynard and walked her to the living

room. He forced the women to disrobe, lie on the floor and perform

oral sex on each other. Sometime before this, he said, he made Ms.

Wheat lick his testicles. Then, in his confession, he said, “When

I saw the girls down on the ground nude, I lost it and I started

stabbing the girls.” According to Mrs. Maynard’s testimony, after

Nelson had stabbed them and was heading for the front door, Ms.

Wheat screamed, causing him to return. Mrs. Maynard escaped

additional harm by feigning death or unconsciousness. He stabbed

Ms. Wheat several more times and she ultimately died from her

wounds. Then Nelson went back to his house across the street,

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disposed of his bloody knife and clothes, took a shower and

relaxed under a blanket on the couch. The police soon found him

there and extracted a series of confessions.

Nelson did not testify at the guilt or punishment phases of

his trial or offer any excuse for his crimes other than saying,

in his confessions, that he had argued with his wife and only went

across the street with the intention of having sex with the women,

not of hurting them. His other mitigating evidence does not

arouse great sympathy: His psychiatrist testified that he suffers

from alcohol and drug addiction and abuse, possible brain damage

and treatable borderline personality disorder. He is peaceable

and not prone to violence, however, except occasionally when he

is intoxicated or on drugs. Otherwise he is law abiding, hard

working and gregarious with children. His mother rejected or

abandoned him at a young age. He lived with his father and his

second family, who discouraged his association with his maternal

relatives. He has troubled relationships with his brother and

women in general. He has an illegitimate child by a former

girlfriend but has not been allowed to associate with the child.

Prior to these crimes he had not been convicted of a felony, but

there was evidence that he was periodically susceptible to

episodes of violence.

Nelson’s psychiatrist testified that Nelson suffers from a

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Borderline Personality Disorder. According to the doctor, Nelson

will function normally for 75% to 80% of the time, but will

exhibit symptoms of mental disorder at other times. Because of the

mental illness, petitioner will periodically go through an

outburst of feelings which can become very violent, become very

destructive. It is possible that both his alcohol and drug

addiction and his borderline personality disorder can be treated

and controlled with medication and medical care.

Considering the merciless depravity of Nelson’s crimes and

the lack of poignancy and excusatory effect of his mitigation

evidence, I have considerable doubt that the State’s failure to

enable and allow his jury to give full consideration and full

effect to his relevant mitigating evidence had a “substantial and

injurious effect” on the verdict. Brecht v. Abrahamson, supra, at

637. Accordingly, I agree that we should not disturb the Texas

Court of Criminal Appeals' rejection of Nelson's Eighth Amendment

claim.

For these reasons, I respectfully concur in the judgment

only.

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