Nelson v. Quarterman

United States Court of Appeals
Fifth Circuit
IN THE UNITED STATES COURT OF APPEALS FILED
FOR THE FIFTH CIRCUIT December 11, 2006

Charles R. Fulbruge III
No. 02-11096 Clerk

BILLY RAY NELSON,
Petitioner-Appellant,
versus

NATHANIEL QUARTERMAN, DIRECTOR
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION,

Respondent-Appellee.

Appeal from the United States District Court
for the Northern District of Texas

Before JONES, Chief Judge, KING, JOLLY, HIGGINBOTHAM, DAVIS, SMITH,
WIENER, BARKSDALE, GARZA, DeMOSS, BENAVIDES, STEWART, DENNIS,
CLEMENT, PRADO, and OWEN, Circuit Judges.

CARL E. STEWART, Circuit Judge:

A panel of this court previously affirmed the district court’s

denial of Billy Ray Nelson’s habeas corpus petition challenging his

sentence on the ground that the Texas capital-sentencing procedure

failed to give constitutionally sufficient effect to his mitigating

evidence, in violation of Penry v. Lynaugh (Penry I), 492 U.S. 302

(1989). See Nelson v. Cockrell, 77 F. App’x 209 (5th Cir. Aug. 12,

2003) (unpublished). Nelson petitioned the Supreme Court for writ

of certiorari. The Supreme Court granted the petition, vacated our
judgment, and remanded the case to this court for reconsideration

in light of the Supreme Court’s decision in Tennard v. Dretke, 542

U.S. 274 (2004). Nelson v. Dretke, 542 U.S. 934 (2004). On remand,

a panel of this court once again affirmed the district court’s

denial of Nelson’s habeas corpus petition. See Nelson v. Dretke,

442 F.3d 282 (5th Cir. 2006). Having ordered rehearing en banc,

Nelson v. Dretke, 442 F.3d 912 (5th Cir. 2006), we again reconsider

the application of Penry I and its progeny to Nelson’s case. We

conclude that, on the facts presented here, there is a reasonable

likelihood that the Texas capital-sentencing scheme precluded the

jury from giving full effect to Nelson’s mitigating evidence as

required by the Supreme Court; accordingly, we REVERSE the district

court’s denial of habeas relief and REMAND with instructions to

grant the writ of habeas corpus.

I. FACTUAL AND PROCEDURAL BACKGROUND

On December 11, 1991, a Texas jury found Nelson guilty of

capital murder for the February 23, 1991, slaying and brutal sexual

assault of his neighbor, Charla Wheat. Evidence presented during

the guilt/innocence phase of trial revealed the following: Nelson

gained entrance to Wheat’s apartment by asking if he could use her

phone. Once inside, he cut the telephone cord to prevent her from

calling for help and then proceeded to stab her. He then found

Wheat’s roommate, Carol Maynard, who was five months pregnant at

the time, and forced her to get out of bed and enter the living

2
room, where Wheat was on her knees bleeding from her stab wounds.

Nelson told the women to remove their clothing and threatened to

kill them if they refused. He then forced the women to perform

sexual acts on him and each other. Thereafter, he stabbed Maynard

in the neck and proceeded to strike Wheat. Nelson left briefly but

Wheat began screaming and he returned. While Maynard pretended to

be dead, Nelson struck and stabbed Wheat until she died. He then

left the women’s apartment.

At the sentencing phase of the trial, Nelson presented the

following mitigating evidence, which we will discuss more fully

infra: (1) he was rejected by his mother, who had completely

abandoned him by age 14 (“abusive childhood” evidence); (2) he

abused drugs and alcohol (“substance abuse” evidence); (3) he has

troubled relationships with his brother and with women; (4) he had

a child out of wedlock, with whom he was not permitted to have a

relationship; and (5) a psychiatrist testified he was suffering

from borderline personality disorder (“mental disorder” evidence).

For a jury to impose the death penalty at the time of Nelson’s

trial, Article 37.071(b) of the Texas Code of Criminal Procedure

required the jury to answer two special issue questions concerning

evidence presented in mitigation: “(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” (“the deliberateness special

3
issue”); and “(2) whether there is a probability that the defendant

would commit criminal acts of violence that would constitute a

continuing threat to society” (“the future-dangerousness special

issue”).1 The jury answered both special-issue questions in the

affirmative, sentencing Nelson to death. Nelson appealed his

sentence and conviction to the Texas Court of Criminal Appeals;

that court affirmed, Nelson v. Texas, 864 S.W.2d 496 (Tex. Crim.

App. 1993), and Nelson’s conviction became final when the Supreme

Court denied certiorari review, Nelson v. Texas, 510 U.S. 1215

(1994).

Nelson filed a state petition for writ of habeas corpus in

September 1997, arguing that the Texas capital sentencing scheme,

i.e., the two special-issue questions, failed to ensure that the

jury could give the constitutionally required consideration of and

effect to his mitigating evidence of his mental disorder, abusive

childhood, and substance abuse under Penry I, 492 U.S. 302. He also

filed a second petition in February 1998, alleging additional

claims. The Texas Court of Criminal Appeals denied the writ based

on the findings and recommendations of the trial court. Ex parte

Nelson, No. 49,886-01 (Tex. Crim. App. Oct. 10, 2001).

1
Although the Texas legislature amended the special issues
sentencing scheme in 1991, Nelson was sentenced under the pre-
amendment version of the special issues. In some cases, the jury
was also given a third special issue addressing provocation.
Nelson’s jury did not receive a provocation instruction, and
therefore we do not address that aspect of the pre-amendment
special issues sentencing scheme here.

4
Specifically, with regard to Nelson’s Penry claims, the Texas Court

of Criminal Appeals recognized that, to be constitutional, “a death

penalty procedure must allow the jury to consider all relevant

mitigating evidence.” Ex parte Nelson, No. 8,214 at 88 (118th

Judicial District Howard County, Tex. July 10, 2001) (findings of

fact and conclusions of law). The court also recognized that where

the defendant’s mitigating evidence is beyond the scope of the

special issues, and the jury is unable to give effect to its

reasoned moral response to the mitigating evidence, the procedure

is unconstitutional as applied to the defendant. Id. In applying

the law to the facts of Nelson’s case, the court noted that

Nelson’s evidence of drug and alcohol abuse had no mitigating

relevance beyond the scope of the special issues. Id. at 89.

Moreover, with regard to the other mitigating evidence presented,

[t]he Court instructed the jury on the charge on
punishment, “You should consider and give effect in
answering each issue to your evaluation of all of the
evidence before you, including all aspects of the
background and character of the defendant and the
circumstances of the crime.” . . . The jury charges and
special issues allowed the jurors to give effect to all
presented mitigating evidence in their answers to the
special issues including the intoxication of [Nelson] at
the time of the offense.

Id. at 90. Therefore, the court concluded that the procedure was

constitutional as applied. The court dismissed Nelson’s subsequent

habeas petition as an abuse of the writ. Ex parte Nelson, No.

49,886-02 (Tex. Crim. App. Oct. 10, 2001).

5
 Nelson filed a petition for writ of habeas corpus in the

federal district court in August 2002. The district court rejected

Nelson’s Penry claim for failing to meet the requirements of our

now-defunct “constitutional-relevance” test.2 A panel of this court

granted Nelson a certificate of appealability (“COA”) on this

issue; however, the panel ultimately affirmed the district court’s

denial of habeas relief. Nelson petitioned the Supreme Court for

writ of certiorari, and the Supreme Court granted the petition,

vacated the panel’s judgment, and remanded the case to this court

for reconsideration in light of the Supreme Court’s decision in

Tennard, 542 U.S. 274. On remand, a panel of this court once again

affirmed the district court’s denial of habeas relief. All three

panel members concurred in the judgment; however, there was no

consensus on the correct methodology for analyzing Nelson’s claim.3

Accordingly, this court ordered rehearing en banc, and we once

2
The “constitutional-relevance” test required that
petitioner’s evidence show “(1) a ‘uniquely severe permanent
handicap[ ] with which the defendant was burdened through no fault
of his own’ and (2) that the criminal act was attributable to this
severe permanent condition.” Davis v. Scott, 51 F.3d 457, 460-61
(5th Cir. 1995) (citations omitted) (alteration in original). As
discussed below, in Tennard v. Dretke, 542 U.S. at 275, the Supreme
Court rejected the constitutional relevance test and reaffirmed
that the standard for relevance is “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. (internal quotations omitted).
3
Chief Judge Jones authored an opinion; Judge Stewart
concurred in the judgment only; and Judge Dennis filed a concurring
opinion. Nelson v. Dretke, 442 F.3d 282.

6
again reconsider the application of Penry in light of Tennard to

the facts of Nelson’s case.4

II. DISCUSSION

A. Standard of Review

Because Nelson filed his § 2254 habeas petition after April

24, 1996, this habeas proceeding is governed by the Antiterrorism

and Effective Death Penalty Act (“AEDPA”). See Fisher v. Johnson,

174 F.3d 710, 711 (5th Cir. 1999). We have jurisdiction to resolve

the merits of Nelson’s habeas petition because, as stated above, we

granted him a COA on his Penry claim. See Nelson v. Dretke, 442

F.3d at 284; see also 28 U.S.C. § 2253(c)(1).

Under AEDPA, a federal court may not grant a writ of habeas

corpus “with respect to any claim that was adjudicated on the

merits in State court proceedings” unless the petitioner shows that

the state court’s 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,” or that the state court’s adjudication of a claim

“resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented in

4
We note that the Supreme Court granted certiorari in Brewer
v. Dretke, 442 F.3d 273 (5th Cir.), cert. granted, 127 S. Ct. 433
(2006), Cole v. Dretke, 418 F.3d 494 (5th Cir. 2005), cert. granted
sub nom. Abdul-Kabir v. Quarterman, 127 S. Ct. 432 (2006), and Ex
Parte Smith, 185 S.W.3d 455 (Tex. Crim. App.) cert. granted sub
nom. Smith v. Texas, 127 S. Ct. 377 (2006).

7
the State court proceeding.” 28 U.S.C. § 2254(d)(1); Williams v.

Taylor, 529 U.S. 362, 402-13 (2000). A state court’s decision is

“contrary to” clearly established federal law if (1) the state

court “applies a rule that contradicts the governing law” announced

in Supreme Court cases, or (2) the state court decides a case

differently than the Supreme Court did on a set of materially

indistinguishable facts. Mitchell v. Esparza, 540 U.S. 12, 15-16

(2003) (internal quotation marks omitted). A state court’s

application of clearly established federal law is “unreasonable”

within the meaning of AEDPA when the state court identifies the

correct governing legal principle from Supreme Court precedent, but

applies that principle to the case in an objectively unreasonable

manner. Wiggins v. Smith, 539 U.S. 510, 520 (2003).

A writ of habeas corpus may also issue if the state court’s

adjudication of a claim “resulted in a decision that was based on

an unreasonable determination of the facts in light of the evidence

presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2).

Under AEDPA, a state court’s factual findings are “presumed to be

correct” unless the habeas petitioner rebuts the presumption

through “clear and convincing evidence.” Id. § 2254(e)(1); Miller

v. Johnson, 200 F.3d 274, 281 (5th Cir. 2000).

We review the district court’s conclusions of law regarding

the state court’s application of federal law de novo, and we review

8
the district court’s findings of fact, if any, for clear error.

Collier v. Cockrell, 300 F.3d 577, 582 (5th Cir. 2002).

B. Clearly Established Federal Law

Under AEDPA, our duty is to determine whether the state

court’s determination was contrary to or an unreasonable

application of clearly established federal law as determined by the

Supreme Court at the time that Nelson’s conviction became final in

1994. See Williams, 529 U.S. at 405. In Tennard and Smith v. Texas,

two recent cases involving Penry claims, the Supreme Court

unequivocally stated that the relevant inquiry under its precedent

was whether there was a reasonable likelihood that the jury would

interpret the Texas special issues in a manner that precluded it

from fully considering and giving full effect to all of the

defendant’s mitigating evidence. See Tennard, 542 U.S. at 288-89;

see also Smith v. Texas, 543 U.S. 37, 38 (2004) (per curiam). This

“full-effect” standard requires that a juror be able to express his

reasoned moral response to evidence that has mitigating relevance

beyond the scope of the special issues; i.e., a juror cannot be

precluded from electing a sentence less than death if he believes

that the mitigating evidence offered makes the defendant less

morally culpable for the crime, even if he nonetheless feels

compelled to answer the two special issues in the affirmative. See

Penry v. Johnson (Penry II), 532 U.S. 782, 797 (2001); Penry I, 492

U.S. at 320. A review of the Supreme Court’s decisions in this area

9
demonstrates that this “full-effect” standard was clearly

established by the time that Nelson’s conviction became final.

1. Jurek v. Texas and the Immediate Post-Furman Cases

In Furman v. Georgia, 408 U.S. 238 (1972), the Supreme Court

held that state capital-sentencing schemes allowing the death

penalty to be “wantonly and . . . freakishly imposed” by permitting

unbridled discretion in sentencing violated the Eighth and

Fourteenth Amendments. Id. at 310 (Stewart, J., concurring). After

Furman, states began to rewrite their death penalty statutes,

restricting the classes of death-penalty eligible offenders and

channeling jurors’ discretion in sentencing in an attempt to comply

with the Supreme Court’s directive. Specifically, Texas responded

to Furman with the “special issues” capital-sentencing scheme at

issue in this case, which was designed to guide jurors’

consideration of mitigating evidence offered in the sentencing

phase of capital cases.

The immediate post-Furman Supreme Court cases addressing this

and other sentencing schemes attempted to strike a balance between

satisfying two competing constitutional requirements–the

requirement of “individualized sentencing” that takes into account

the unique facts of each case and each defendant, and the

requirement of preventing the arbitrary imposition of the death

penalty that can result from giving the sentencer unfettered

discretion. These cases announced the principles that would

10
underlie the Supreme Court’s later pronouncement that a capital

sentencing scheme must allow the sentencer to give full effect to

all of the defendant’s mitigating evidence.

In Jurek v. Texas, 428 U.S. 262 (1976), the Supreme Court

upheld the facial constitutionality of the Texas special-issues

sentencing scheme on the same day that it ruled on the validity of

the post-Furman death penalty statutes of four other states. See

Gregg v. Georgia, 428 U.S. 153 (1976) (upholding the facial

constitutionality of Georgia’s capital-sentencing scheme, which

narrowed the class of death-eligible offenders and guided the

sentencer’s consideration of mitigating and aggravating evidence);

Proffitt v. Florida, 428 U.S. 242 (1976) (upholding the facial

constitutionality of Florida’s capital-sentencing scheme, which

narrowed the class of death-eligible offenders and guided the

sentencer’s consideration of mitigating and aggravating evidence);

Woodson v. North Carolina, 428 U.S. 280 (1976) (striking down North

Carolina’s mandatory capital-sentencing scheme because it gave

sentencers no discretion to impose the death penalty for certain

crimes); Roberts v. Louisiana, 428 U.S. 325 (1976) (striking down

Louisiana’s capital-sentencing scheme requiring the imposition of

the death penalty for certain crimes). In Jurek, a plurality of the

Court explained that, while the Texas sentencing scheme was

constitutional on its face, “[a] jury must be allowed to consider

on the basis of all relevant evidence not only why a death sentence

11
should be imposed, but also why it should not be imposed.” Jurek,

428 U.S. at 271 (plurality opinion) (citing Woodson, 428 U.S. at

303-05); see also Roberts, 428 U.S. at 334-36 (plurality opinion).

Therefore, “the constitutionality of the Texas procedures turns on

whether the enumerated questions allow consideration of

particularized mitigating factors.” Jurek, 428 U.S. at 272. While

observing that the future-dangerousness special issue allowed

consideration of some types of mitigating evidence, the Jurek

plurality also left room for as-applied challenges to the Texas

sentencing scheme, noting that the Texas Court of Criminal Appeals

had not yet interpreted the deliberateness and provocation special

issues. Id. at 272 n.7 (“[I]t is as yet undetermined whether or not

the jury’s consideration of those questions would properly include

consideration of mitigating circumstances.”).

2. Lockett v. Ohio and Eddings v. Oklahoma

Echoing these post-Furman concerns that the sentencer be able

to consider and give effect to mitigating evidence in a

constitutionally adequate way, the Supreme Court in Lockett v.

Ohio, 438 U.S. 586 (1978), struck down Ohio’s death penalty

statute, which allowed the sentencer to impose a sentence less than

death for certain crimes only if the mitigating evidence showed

that (1) the victim induced or facilitated the offense, (2) the

offense was a result of duress, coercion, or strong provocation, or

(3) the offense was a product of psychosis or mental retardation.

12
A plurality of the Court explained that this sentencing scheme,

which allowed the sentencer to consider some aspects of the

mitigating evidence presented but not others, was unconstitutional

because

the Eighth and Fourteenth Amendments require that the
sentencer, in all but the rarest kind of capital case,
not be precluded from considering, as a mitigating
factor, any aspect of a defendant’s character or record
and any of the circumstances of the offense that the
defendant proffers as a basis for a sentence less than
death.

Id. at 604 (plurality opinion); see also Kansas v. Marsh, 126 S.

Ct. 2516, 2525 (2006) (noting that the Ohio sentencing scheme in

Lockett was unconstitutional “because, by limiting a jury’s

consideration of mitigation to three factors specified in the

statute, it prevented sentencers in capital cases from giving

independent weight to mitigating evidence militating in favor of a

sentence other than death”) (emphasis added). Four years later, in

Eddings v. Oklahoma, 455 U.S. 104 (1982), a majority of the Court

adopted the Lockett plurality’s reasoning to vacate an Oklahoma

death sentence where the sentencing judge refused to consider, as

a matter of law, the defendant’s mitigating evidence of his abusive

childhood and treatable emotional disturbance. The Court rejected

the state appellate court’s application of a heightened-relevance

standard to the mitigating evidence, noting that while the

sentencer can “determine the weight to be given relevant mitigating

evidence,” it “may not give it no weight by excluding such evidence

13
from [its] consideration.” Id. at 115; see also Marsh, 126 S. Ct.

at 2525 (observing that, in Eddings, “a majority of the Court held

that a sentencer may not categorically refuse to consider any

relevant mitigating evidence”).

3. Franklin v. Lynaugh

The Court considered an as-applied challenge to the Texas

capital-sentencing scheme for the first time in Franklin v.

Lynaugh, 487 U.S. 164 (1988). There, the Court held that the

special issues allowed the jury to give constitutionally adequate

effect to the petitioner’s mitigating evidence of good behavior

during a previous term of imprisonment. A plurality of the Court

stated that, because the petitioner’s evidence of good prison

behavior did not have mitigating significance independent of its

relevance to the petitioner’s propensity to commit future crimes,

“[i]n resolving the [future-dangerousness special issue] the jury

was surely free to weigh and evaluate petitioner’s disciplinary

record as it bore on his ‘character’–that is, his ‘character’ as

measured by his likely future behavior.” Id. at 177-78. Justice

O’Connor concurred separately, emphasizing that, although Jurek

upheld the facial validity of the Texas capital sentencing scheme,

and in this case the mitigating relevance of all of the

petitioner’s evidence was within the scope of the special issues,

[i]f . . . petitioner had introduced mitigating evidence
about his background or character or the circumstances of
the crime that was not relevant to the special verdict
questions, or that had relevance to the defendant’s moral

14
 culpability beyond the scope of the special verdict
questions, the jury instructions would have provided the
jury with no vehicle for expressing its “reasoned moral
response” to that evidence. If this were such a case,
then we would have to decide whether the jury’s inability
to give effect to that evidence amounted to an Eighth
Amendment violation. In my view, however, this is not
such a case.

Id. at 185 (O’Connor, J., concurring).

4. Penry I

The very next term, the Supreme Court considered just such a

case in Penry I, 492 U.S. 302. The Penry I Court held that habeas

relief was appropriate because a juror presented with the Texas

special issues could not have given effect to the full scope of the

mitigating evidence that had been presented at the sentencing

phase. Penry, a death-row habeas petitioner, had offered mitigating

evidence at sentencing of (1) a low I.Q. indicating likely mental

retardation; (2) an organic brain disorder that prevented him from

appreciating the wrongfulness of his conduct or conforming his

behavior to the law; (3) a troubled, abusive upbringing; and (4) an

anti-social personality disorder. Penry argued that the Texas

special issues, as applied in his case, were an inadequate vehicle

to allow the jury to consider or give effect to this evidence,

because the evidence had mitigating relevance beyond the scope of

the special issues. The Court, with Justice O’Connor writing for

the majority, first held that granting Penry the relief he

requested would not announce a new rule on collateral review in

violation of Teague v. Lane, 489 U.S. 288 (1989), because granting

15
such relief was “dictated by Eddings and Lockett.” Penry I, 492

U.S. at 317.

The Court then granted the habeas petition, emphasizing 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. at 319. Only then can the sentence imposed “‘reflect

a reasoned moral response to the defendant’s background, character,

and crime.’” Id. (quoting California v. Brown, 479 U.S. 538, 545

(1987) (O’Connor, J., concurring)). Indeed, as “both the

concurrence and dissent in Franklin understood,” Jurek, in which

the Court upheld the facial validity of the Texas capital-

sentencing scheme, “rest[ed] fundamentally on the express assurance

that the special issues would permit the jury to fully consider all

the mitigating evidence a defendant introduced that was relevant to

the defendant’s background and character and to the circumstances

of the offense.” Id. at 321 (emphasis added).

In Penry’s case, however, the Court held that the evidence of

mental retardation and abusive childhood had mitigating relevance

beyond the scope of the deliberateness and future-dangerousness

issues, because it also spoke to Penry’s moral culpability;

therefore, the jury was unable to give effect to the mitigating

evidence in a manner consistent with the Eighth Amendment. First,

with regard to the deliberateness special issue, the Court reasoned

16
that, although a jury could give partial effect to Penry’s mental

retardation and abusive past by finding that his actions were not

deliberate, a jury could also conclude that Penry acted

deliberately but, because of his mental retardation and abusive

childhood, “was less morally ‘culpable than defendants who have no

such excuse,’ but who acted ‘deliberately’ as that term is commonly

understood.” Id. at 322-23 (quoting California v. Brown, 479 U.S.

at 545 (O’Connor, J., concurring)). Without a special instruction

enabling the jury to give effect to the impact of Penry’s

mitigating evidence on his moral culpability, the jury lacked an

adequate vehicle through which to express its “reasoned moral

response” to this evidence. Second, the Court held that the future-

dangerousness instruction was likewise constitutionally inadequate

because, in this case, “Penry’s mental retardation and history of

abuse is . . . a two-edged sword: it may diminish 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.

Because Penry’s mitigating evidence, viewed through the lens of

future dangerousness, “is relevant only as an aggravating factor[,]

. . . ‘[i]t did not allow the jury to consider a major thrust of

Penry’s evidence as mitigating evidence.’” Id. at 323-24 (quoting

Penry v. Lynaugh, 832 F.2d 915, 925 (5th Cir. 1987)).

Although the Court did not expressly use the words “full

effect” in Penry I, its reasoning makes clear that “full effect” is

17
what it meant. See, e.g., Penry I, 492 U.S. at 323 (“In the absence

of 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.”) (emphasis added); id. at 318-19 (“Penry

argues that those assurances were not fulfilled in his particular

case because, without appropriate instructions, the jury could not

fully consider and give effect to the mitigating evidence of his

mental retardation and abused childhood in rendering its sentencing

decision.”). Further, even the dissent in Penry I recognized that

the Court was applying a full-effect standard:

that the constitutionality turns on whether the questions
allow mitigating factors not only to be considered (and,
of course, given effect in answering the questions), but
also to be given effect in all possible ways, including
ways that the questions do not permit. . . . What the
Court means by “fully consider” (what it must mean to
distinguish Jurek) is to consider for all purposes,
including purposes not specifically permitted by the
questions.

Penry I, 492 U.S. at 355 (Scalia, J., dissenting) (citation

omitted). Thus there can be no doubt that the Penry I Court applied

a standard requiring the jury to be able to give full consideration

and full effect to a defendant’s mitigating evidence.

The State contends that the “full effect” language in Penry I

and its progeny “is merely dicta, because it would otherwise

18
overrule Jurek”; however, this argument mischaracterizes the

holding in Jurek, which upheld only the facial validity of the

Texas special issues scheme. See Jurek, 428 U.S. at 272 (stating

that “the constitutionality of the Texas procedures turns on

whether the enumerated questions allow consideration of

particularized mitigating factors,” but also noting that “it is as

yet undetermined whether or not the jury’s consideration of [the

special issues] would properly include consideration of mitigating

circumstances” in every situation). The Penry I Court’s holding was

a case-specific application of Jurek, which expressly left room for

as-applied challenges. See Penry I, 429 U.S. at 320 (“[B]oth the

concurrence and the dissent understood Jurek as resting

fundamentally on the express assurance that the special issues

would permit the jury to fully consider all the mitigating evidence

a defendant introduced that was relevant to the defendant’s

background and character and to the circumstances of the

offense.”). That Jurek involved only a facial challenge to the

Texas statute is apparent not only from the Court’s decision in

Penry I, holding the Texas statute unconstitutional as applied, but

also from the Court’s decisions in as-applied challenges to the

constitutionality of the death penalty procedures in other states.

As discussed above, the Supreme Court upheld facial challenges to

the death penalty procedures in Georgia and Florida at the same

time that it upheld the facial challenge to the Texas statute. See

19
Gregg v. Georgia, 428 U.S. 153; Proffitt v. Florida, 428 U.S. 242.

Nevertheless,

after Gregg and Proffitt and prior to Franklin, [the
Court] held unconstitutional specific applications of the
same Georgia and Florida statutes [it] earlier had
approved. See Godfrey v. Georgia, 446 U.S. 420 (1980)
(vague and overly broad construction of aggravating
factor rendered death sentence unconstitutional);
Hitchcock v. Dugger,[481 U.S. 393 (1987),] (holding it
unconstitutional to restrict jury’s consideration of
mitigating factors to those enumerated in the statute).

Johnson v. Texas, 509 U.S. 350, 384 (1993) (O’Connor, J.,

dissenting). Further, applying the full-consideration and full-

effect standard does not require overruling Jurek, because “some

types of mitigating evidence can be fully considered by the

sentencer in the absence of special jury instructions.” Penry I,

492 U.S. at 315 (citing Franklin v. Lynaugh, 487 U.S. at 175

(plurality opinion); Franklin v. Lynaugh, 487 U.S. at 185-86

(O’Connor, J., concurring in judgment)); see also Graham v.

Collins, 506 U.S. 461, 521 (1993) (Souter, J., dissenting)

(explaining that the petitioner’s evidence of “[v]oluntary chores

for and church attendance with a relative, and supplying some level

of support for [his] children” could be considered through the

future-dangerousness special issue). The Constitution requires a

court to determine whether the special issues as applied enable the

sentencer to give full consideration and full effect to the capital

defendant’s mitigating evidence; the “full-effect” standard is

not–and has never been–inconsistent with the holding in Jurek.

20
 5. Graham v. Collins and Johnson v. Texas

After Penry I, the Court addressed in Graham, 506 U.S. 461,

and Johnson, 509 U.S. 350, two more as-applied challenges to the

Texas special issues sentencing scheme, both of which denied relief

to petitioners who claimed that the special issues failed to give

effect to the mitigating evidence of their youth. In Graham, the

Court held that Teague barred it from granting relief to a habeas

petitioner who lodged a Penry challenge to his death sentence,

which became final in 1984. The petitioner argued that the Texas

special issues did not give constitutionally adequate effect to his

mitigating evidence of good character and youth. Because the Court

disposed of the case on Teague grounds, it did not address the

substantive merits of the petitioner’s Penry claim; instead, it

considered whether granting the petitioner’s requested relief would

have constituted a new rule at the time the petitioner’s sentence

became final in 1984, holding that

even if Penry reasonably could be read to suggest that
Graham’s mitigating evidence was not adequately
considered under the former Texas procedures, that is not
the relevant inquiry under Teague. Rather, the
determinative question is whether reasonable jurists
reading the case law that existed in 1984 could have
concluded that Graham’s sentencing was not
constitutionally infirm. We cannot say that all
reasonable jurists would have deemed themselves compelled
to accept Graham’s claim in 1984. . . . The ruling Graham
seeks, therefore, would be a “new rule” under Teague.

Id. at 477.

21
 Later that term, in Johnson, 509 U.S. 350, the Court

considered a similar challenge on direct review. In Johnson, the

only mitigating evidence that the petitioner offered was that of

his youth at the time he committed the crime. The Court noted that,

unlike other mitigating evidence that the Court had considered in

previous cases, “[t]he relevance of youth as a mitigating factor

derives from the fact that the signature qualities of youth are

transient; as individuals mature, the impetuousness and

recklessness that may dominate in younger years can subside.” Id.

at 368 (emphasis added). Given these unique characteristics of

youth, the Court held that this evidence did not lie beyond the

reach of the sentencer applying the Texas special issues because

“there is ample room in the assessment of future dangerousness for

a juror to take account of the difficulties of youth as a

mitigating force in the sentencing determination.” Id. The Court

applied the standard set forth in Boyde v. California, 494 U.S. 370

(1990), to “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.’”

Johnson, 509 U.S. at 367 (quoting Boyde, 494 U.S. at 380).

“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.” Id. The

22
Court, again emphasizing the unique qualities of youth as a

mitigating factor, distinguished Penry I, noting that “[u]nlike

Penry’s mental retardation, which rendered him unable to learn from

his mistakes, the ill effects of youth that a defendant may

experience are subject to change and, as a result, are readily

comprehended as a mitigating factor in consideration of the second

special issue.” Johnson, 509 U.S. at 369. Further, unlike the

evidence of mental retardation at issue in Penry I, a juror’s

consideration of the impact of youth on the petitioner’s conduct

“is not independent of an assessment of personal culpability. . . .

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 369-70. Thus Graham and Johnson stand for

the proposition that youth, which is different in kind and in

mitigating effect from Penry’s evidence of mental retardation and

abusive childhood, can be fully considered and given effect through

the special-issues sentencing scheme.

6. Penry II

In Penry II, 532 U.S. 782, Justice Kennedy, the author of

Johnson, joined the majority, and the Court reaffirmed that the

standard is full effect, once again invalidating the application of

the Texas special issues to Penry’s mitigating evidence of mental

23
retardation and abusive upbringing. After the Court vacated Penry’s

death sentence in Penry I, the State of Texas retried Penry, who

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

During the sentencing phase of the second trial, the court

submitted the same special issues to the jury that were the focus

of Penry I, only this time the court also provided a supplemental

“nullification” instruction. This instruction directed the jury to

consider the effect of all of the mitigating evidence on Penry’s

personal culpability, and,

[i]f you determine, when giving effect to the mitigating
evidence, if any, that a life sentence, as reflected by
a negative finding to the issue under consideration,
rather than a death sentence, is an appropriate response
to [Penry’s] personal culpability . . . , a negative
finding should be given to one of the special issues.

Id. at 790.

The Court, fully aware of the analytical constraints imposed

by the deferential AEDPA standard of review, held that the Texas

Court of Criminal Appeals had unreasonably applied the holding of

Penry I when it held that the special issues and the nullification

instruction were constitutionally adequate vehicles to give effect

to Penry’s mitigating evidence. Justice O’Connor, writing for the

Court, stated:

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, 109 S.
Ct. 2934 (emphasis added). See also Johnson v. Texas, 509
U.S. 350, 381(1993) (O’CONNOR, J., dissenting) (“[A]
sentencer [must] be allowed to give full consideration
and full effect to mitigating circumstances” (emphasis in

24
 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 being]’ 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
(1976)).

Penry II, 532 U.S. at 797. As the Court held in Penry I, the

deliberateness and future-dangerousness issues were not broad

enough to provide a vehicle that allowed the jury to express its

reasoned moral response to the full mitigating impact of all of the

evidence; neither was the State’s attempted fix–the nullification

instruction–constitutionally sufficient, because “it made the jury

charge as a whole internally contradictory and placed law-abiding

jurors in an impossible situation.” Id. at 799. Under this scheme,

there was still “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.” Id. (quoting Boyde, 494 U.S. at 380). Because the

State failed to define either special issue “in a way that would

clearly direct the jury to consider fully Penry’s mitigating

evidence as it bears on his personal culpability,” the Texas

special-issues scheme was still unconstitutional as applied to

Penry’s mitigating evidence, and the Texas Court of Criminal

Appeals’ conclusion otherwise was an unreasonable application of

25
clearly established federal law. Penry II, 532 U.S. at 803

(emphasis added).

7. Tennard v. Dretke and Smith v. Texas

The Supreme Court’s decision in Tennard, in light of which

this court must assess Nelson’s Penry claim, reaffirms that a jury

cannot be precluded from giving full effect to a defendant’s

mitigating evidence and leaves no doubt that this standard was in

effect at the time that Nelson’s conviction became final.5 The

Supreme Court handed down Tennard on June 24, 2004, reversing a

panel of this court that had applied the aforementioned

“constitutional-relevance” test to deny a COA on a death-row

inmate’s petition for habeas relief on Penry grounds. The Court

explained that the petitioner, who argued that the Texas special

issues sentencing scheme did not enable the sentencer to give full

effect to his mitigating evidence of impaired intellectual

functioning and low I.Q. score, was entitled to a COA, and that the

5
Tennard’s conviction became final when the Supreme Court
denied certiorari on his direct appeal on June 28, 1991. Tennard v.
Texas, 501 U.S. 1259 (1991). Under AEDPA, therefore, the Supreme
Court’s duty in Tennard was to determine whether the Texas Court of
Criminal Appeals unreasonably applied federal law that was clearly
established as of June 28, 1991. In light of AEDPA’s mandate, the
Tennard Court’s insistence that a jury be able to consider and give
effect to evidence with mitigating relevance to a defendant’s moral
culpability in addition to the special issues indicates that the
“full-effect” standard was well in place by 1991; indeed, as
explained above, this standard, which is the same standard that the
Court applied in Penry I, was “dictated by Eddings and Lockett.”
Penry I, 492 U.S. at 317. Nelson’s conviction became final in
1994, three years after Tennard’s. Nelson v. Texas, 510 U.S. 1215
(1994).

26
lower courts had erred by applying the Fifth Circuit’s

“constitutional-relevance” test.

Specifically, the Supreme Court excoriated the Fifth Circuit

for invoking its own restrictive gloss on the Court’s Penry I

decision, uniformly applying to Penry claims a heightened-relevance

standard that “has no foundation in the decisions of this Court.”

Tennard, 542 U.S. at 284. The Court then reiterated that the

appropriate-relevance standard in a capital case–as in any other

case–is a low one:

When we addressed directly the relevance standard
applicable to mitigating evidence in capital cases in
McKoy v. North Carolina, 494 U.S. 433, 440-41 (1990), we
spoke in the most expansive terms. We established 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. Id. at 440 (quoting New Jersey v.
T.L.O., 469 U.S. 325, 345 (1985)). . . . Thus, a State
cannot bar “the consideration of . . . evidence if the
sentencer could reasonably find that it warrants a
sentence less than death.” 494 U.S. at 441.

Tennard, 542 U.S. at 284-85.

Then, “[o]nce this low threshold for relevance is met, the

‘Eighth Amendment requires that the jury be able to consider and

give effect to’ a capital defendant’s mitigating evidence.” Id. at

285 (quoting Boyde v. California, 494 U.S. 370, 377-378 (1990)

(citing Lockett v. Ohio, 438 U.S. 586 (1978); Eddings v. Oklahoma,

27
455 U.S. 104 (1982); Penry I, 492 U.S. 302 (1989))); see also Payne

v. Tennessee, 501 U.S. 808, 822 (1991) (“We have held that a State

cannot preclude the sentencer from considering ‘any relevant

mitigating evidence’ that the defendant proffers in support of a

sentence less than death . . . [V]irtually no limits are placed on

the relevant mitigating evidence a capital defendant may introduce

concerning his own circumstances.” (quoting Eddings, 455 U.S. at

114)).

The Court emphasized that, in assessing the relevance of

mitigating evidence, a reviewing court should not weigh the

severity or sufficiency of the evidence, except

insofar as evidence of a trivial feature of the
defendant’s character or the circumstances of the crime
is unlikely to have any tendency to mitigate the
defendant’s culpability. See Skipper [v. South Carolina,
476 U.S. 1,] 7, n.2 (“We do not hold that all facets of
the defendant’s ability to adjust to prison life must be
treated as relevant and potentially mitigating. For
example, we have no quarrel with the statement . . . that
‘how often [the defendant] will take a shower’ is
irrelevant to the sentencing determination[.”).] . . .
However, to say that only those features and
circumstances that a panel of federal appellate judges
deems to be “severe” (let alone “uniquely severe”) could
have such a tendency is incorrect. Rather, the question
is simply whether the evidence is of such a character
that it “might serve ‘as a basis for a sentence less than
death,’” Skipper, [467 U.S.] at 5.

Tennard, 542 U.S. at 286-87.

The Court concluded:

the Fifth Circuit’s screening test has no basis in our
precedents and, indeed, is inconsistent with the standard
we have adopted for relevance in the capital sentencing
context. We therefore hold that the Fifth Circuit

28
 assessed Tennard’s Penry claim under an improper legal
standard. Cf. Miller-El v. Cockrell, 537 U.S. [322, 341
(2003)] (holding, on certiorari review of the denial of
a COA, that the Fifth Circuit had applied an incorrect
standard by improperly merging the requirements of two
statutory sections).

Tennard, 542 U.S. at 287.

Although the decision in Tennard principally focused on

rejecting the “constitutional-relevance” standard, the Court also

indicated that Tennard’s evidence may have had relevance beyond the

scope of the special issues, and that a jury might have been

precluded from giving effect to that aspect of Tennard’s mitigating

evidence. The Court explained that a COA should have issued because

[t]he relationship between the special issues and
Tennard’s low IQ evidence has the same essential features
as the relationship between the special issues and
Penry’s mental retardation evidence. Impaired
intellectual functioning has mitigating dimension beyond
the impact it has on the individual’s ability to act
deliberately. See Penry I, 492 U.S. at 322. A reasonable
jurist could conclude that the jury might well have given
Tennard’s low IQ evidence aggravating effect in
considering his future dangerousness . . . .

Id. at 288-89.

In its most recent pronouncement on the Penry issue, the

Supreme Court in Smith v. Texas, 543 U.S. 37, once again reiterated

that, to comply with the Eighth Amendment, a capital sentencing

scheme must give full effect to all of a defendant’s mitigating

evidence. In a per curiam opinion issued shortly after Tennard, the

Court reversed the Texas Court of Criminal Appeals’ denial of state

habeas relief, holding that the Texas special issues and a

29
supplemental nullification instruction similar to the one at issue

in Penry II did not give full effect to the petitioner’s mitigating

evidence of the petitioner’s (1) learning disabilities; (2) low

I.Q. scores; and (3) childhood abuse and troubled upbringing.

First, the Court held that, in light of Tennard, the Texas

Court of Criminal Appeals erred when it relied on the Fifth

Circuit’s “constitutional-relevance” test to dispose of the

petitioner’s Penry claim. Second, the Court held that, under its

precedent, the Texas Court of Criminal Appeals erred when it held

that the special issues and nullification instruction gave

sufficient mitigating effect to the petitioner’s mitigating

evidence. The Court, reviewing its case law, stressed that “[i]n

Penry v. Johnson, 532 U.S. 782 (2001) (Penry II), we held a similar

‘nullification instruction’ constitutionally inadequate because it

did not allow the jury to give ‘full consideration and full effect

to mitigating circumstances’ in choosing the defendant’s

appropriate sentence. Id. at 797 (quoting Johnson v. Texas, 509

U.S. 350, 381 (1993) (O’CONNOR, J., dissenting)).” Smith, 543 U.S.

at 38. The Smith Court therefore once again reaffirmed that the

standard is full consideration and full effect.

The State’s contention that Smith and Penry II are inapposite

to the instant case because they involved a nullification

instruction is not well taken. As we explained above, the

nullification instruction was not an adequate solution to the

30
problem the Court identified in Penry I–namely, that the jurors

could not give Penry’s mitigating evidence full effect through the

special issues. Penry II, 532 U.S. at 797 (“[T]he key under Penry

I is that the jury be able to ‘consider and give effect to [a

defendant’s mitigating] evidence in imposing sentence.’” (emphasis

and alteration in original) (quoting Penry I, 492 U.S. at 319)).

Accordingly, the focus of our inquiry is not whether there was a

nullification instruction, but whether the procedure, whatever it

was, allowed the jury to express its reasoned moral response to the

defendant’s mitigating evidence. See id. And the standard for

making that determination is whether there is a reasonable

likelihood that the procedure precluded the jury from giving full

consideration and full effect to the defendant’s mitigating

evidence.

This review of the relevant Supreme Court case law therefore

establishes that, at the time Nelson’s conviction became final in

1994, the clearly established law as announced by the Supreme Court

was a full-effect standard. The Penry II Court left no doubt that

full effect was the applicable standard, or that this was the

standard that applied in Penry I. The debate has long since been

over. Today, we make clear that we are following the Supreme

Court’s directive and applying the standard it articulated; i.e.,

whether there is a reasonable likelihood that the special issues

precluded the jury from giving full consideration and full effect

31
to the defendant’s mitigating evidence, including evidence that has

mitigating relevance outside the scope of the special issues

because it speaks to a defendant’s moral culpability. This standard

was “dictated by” the Supreme Court’s earlier decisions in Eddings

and Lockett, see Penry I, 492 U.S. at 317, and Graham and Johnson

are not to the contrary. Moreover, the Court’s most recent

decisions in Tennard and Smith reaffirm that this standard was

clearly established federal law at the time Nelson’s conviction

became final. Accordingly, we turn to the question presented in

this case–whether the state court’s determination that the Texas

capital-sentencing scheme was constitutional as applied in Nelson’s

case was contrary to or an unreasonable application of clearly

established law as announced by the Supreme Court.

C. Application of Clearly Established Federal Law to Nelson’s
Case

The Texas Court of Criminal Appeals concluded that the special

issues were constitutional as applied to Nelson. Because there is

a reasonable likelihood that the jury was precluded from giving

full effect to Nelson’s mitigating evidence, we hold that the Texas

Court of Criminal Appeals’ determination was an unreasonable

application of clearly established law as announced by the Supreme

Court.

1. Nelson’s Mitigating Evidence

The parties agree that, at the punishment phase of the trial,

Nelson presented the following mitigating evidence of: (1) an

32
abusive childhood; (2) substance abuse; (3) troubled relationships

with his brother and with women; (4) having had a child out of

wedlock with whom he was not permitted to have a relationship; and

(5) a mental disorder. Specifically, Nelson offered the testimony

of his father, who described in great detail the emotional abuse

and rejection that Nelson suffered at the hands of his mother while

he was growing up. Nelson’s father explained that Nelson was the

second of two boys, and Nelson’s mother, who had always wanted a

girl, rejected Nelson from birth, refusing to care for him, “change

him or feed him [or] anything.” After Nelson’s parents separated

when Nelson was fourteen years old, his mother completely abandoned

him, leaving and refusing to take him with her.

Nelson also presented testimony from Dr. John Hickman, a

psychiatrist who personally interviewed and assessed Nelson. Dr.

Hickman testified extensively about the symptoms of borderline

personality disorder, which can manifest themselves in “psychotic

outburst[s]” and a “lack of impulse control.” According to Dr.

Hickman, a person with borderline personality disorder has little

insight into his own illness and may “periodically go through an

outburst of feelings which can become very violent, very

destructive,” even though he exhibits normal behavior “75 to 80

percent” of the time. Dr. Hickman noted that Nelson in particular

experiences “a lot of impulse and a lot of raw energy and anger

. . . [that] he has no [insight] into whatsoever” as a result of

his borderline personality disorder.

33
 He further explained that borderline personality disorder can

be especially “severe” in cases of maternal abandonment, and, in

this case, Nelson’s abusive upbringing and rejection by his mother

engendered a “rage toward women” that was evidenced by the nature

of the crime that he committed. Dr. Hickman observed that Nelson’s

borderline personality disorder was a consequence of growing up in

a home where Nelson did not learn to control his anger and where he

was subjected to psychologically abusive treatment by his mother,

who told him that “he couldn’t do anything right” and that “she

didn’t want him.” In Dr. Hickman’s judgment, at the time he

committed the crime, Nelson “had a psychotic outburst” and was

under the influence of “either a mental or physical form of duress”

resulting from “his physical and psychological makeup.” Dr. Hickman

also stated that, in addition to being “psychologically abused” by

his mother, Nelson had “some family history which indicates

disregard and abuse for women” and that “it is almost as if he is

trained to be that way.” Additionally, Dr. Hickman noted that

Nelson’s substance abuse likely exacerbated the effects of Nelson’s

borderline personality disorder, describing “eruptive episodes,

generally influenced by alcohol or cocaine, where all that

primitive impulse comes out,” which were “guaranteed to be self-

destructive.” In sum, Dr. Hickman observed that Nelson “has a

morass of anger, hostility, given the combination of a borderline

personality, given stress factors, given alcohol, given cocaine,

all hell is going to break loose with him.”

34
 Although Dr. Hickman testified that borderline personality

disorder can be treated in some cases, he indicated that borderline

personality disorder is difficult to treat because persons with

borderline personality disorder do not want to “admit they are weak

and vulnerable” and often refuse to undergo therapy. Dr. Hickman

estimated that in Nelson’s case, it could take at least a year just

to break down Nelson’s “defenses” and convince him to participate

in treatment; after that, Nelson would require “long

psychotherapy–and I’m talking about two to five years. That is

standard for borderline. And . . . medication.” Dr. Hickman

emphasized that this intensive psychotherapy would require “two or

three times a week with . . . a therapist that can work with him”

in addition to “the proper drug medication” and “a strict

environment” where Nelson could “learn internal controls.” Dr.

Hickman noted that, even with such treatment, he could not

guarantee Nelson’s success, and “if he doesn’t get treatment, I

think we can predict dangerousness.”

2. The Special Issues as Applied to Nelson’s Mitigating
Evidence

As a threshold matter, the State contends that Penry and its

progeny apply only to a very narrow set of cases in which the

mitigating evidence is “double-edged,” i.e., has both aggravating

and mitigating effect, and the future-dangerousness special issue

gives the evidence only aggravating effect. Thus, according to the

State, a Penry analysis in this case is not necessary. We disagree.

35
The Supreme Court has never limited the applicability of

Penry–either explicitly or implicitly–to cases involving “double-

edged” mitigating evidence. In Penry I, the Court’s observation

that Penry’s evidence of mental illness was “two-edged” was just

one of many reasons that the special issues were inadequate

vehicles to give Penry’s evidence full mitigating effect; it was

not the determining factor. See Penry I, 492 U.S. at 324 (listing

the “two-edged sword” nature of Penry’s evidence as one of a number

of reasons that the future-dangerousness issue could not give

Penry’s evidence full mitigating effect). Justice O’Connor’s

dissent in Johnson explains that placing too much weight on the

Court’s description of Penry’s evidence as “two-edged”

mischaracterizes the Penry I Court’s reasoning:

The second special issue was not inadequate because
evidence worked only against Penry; it was inadequate
because it did not allow the jury to give full effect to
Penry’s mitigating evidence. Penry, 492 U.S. at 323. Our
discussion of the third special issue–whether the
defendant’s conduct was unreasonable in response to the
provocation–also focused on the inability of a juror to
express the view that Penry lacked “the moral culpability
to be sentenced to death” in answering the question. Id.
at 324-25. The point of Penry is clear: A death sentence
resulting from application of the Texas special issues
cannot be upheld unless the jurors are able to consider
fully a defendant’s mitigating evidence. Accord, id. at
355 (SCALIA, J., concurring in part and dissenting in
part) (The Court today holds that “the constitutionality
turns on whether the [special] questions allow mitigating
factors not only to be considered . . . , but also to be
given effect in all possible ways, including ways that
the questions do not permit”).

36
See Johnson, 509 U.S. at 386 (O’Connor, J., dissenting). Indeed,

Chief Justice Rehnquist dissented from the Court’s decision in

Tennard arguing that Tennard’s evidence was not “two-edged.”

Tennard, 542 U.S. at 292-93 (“In either case–contrary to Penry

I–the evidence could be given mitigating effect in the second

special issue. In short, low intelligence is not the same as mental

retardation and does not necessarily create the Penry I “two-edged

sword.”). A majority of the Court declined to accept that argument

in Tennard and, therefore, we cannot accept it here.

Further, the Court has indicated that Penry applies–or at

least potentially could apply–in cases involving evidence that is

not double-edged. See, e.g., Smith, 543 U.S. 37 (reversing the

state court’s denial of habeas relief because the special issues

could not give full effect to mitigating evidence of low I.Q. and

troubled upbringing); Tennard, 542 U.S. 274 (holding that habeas

petitioner was entitled to a COA on his Penry claim based on

mitigating evidence of low I.Q. and impaired intellectual

functioning). In short, the State urges this court to wrench one

component of the Court’s reasoning in Penry I out of context and

use it as a dispositive screening test in our assessment of Penry

claims. In effect, the State asks this court to develop another

“restrictive gloss on Penry I,” similar to the “constitutional-

relevance” test that the Court struck down in Tennard. Tennard, 542

U.S. at 283. The Court has never used the consideration of whether

37
evidence is double-edged as a single-issue screening test as the

State urges us to do; and, given the Court’s strong admonition in

Tennard, we decline to do so. Consequently, we turn now to the

State’s alternative argument that Nelson’s evidence could be

adequately considered through the two special issues.

a. Deliberateness Special Issue

Nelson’s mitigating evidence of borderline personality

disorder and abandonment by his mother had relevance beyond the

scope of the deliberateness special issue. As the Supreme Court

observed in Penry I, a reasonable juror could have concluded that,

while the murder was deliberate, Nelson was less morally culpable

as a result of his borderline personality disorder and abusive

childhood than a murderer without such a mental illness and similar

upbringing might have been. See Penry I, 492 U.S. at 323-24; see

also Skipper v. South Carolina, 476 U.S. 1, 13-14 (1986) (Powell,

J., concurring in judgment) (stating that evidence concerning a

defendant’s “emotional history . . . bear[s] directly on the

fundamental justice of imposing capital punishment”). Because a

major mitigating thrust of evidence of a mental disorder and an

abusive childhood is that such afflictions could reduce an

offender’s moral culpability, it is “reasonably likely” that a

juror would not have been able to give full effect to his “reasoned

moral judgment” regarding the full mitigating impact of Nelson’s

evidence through the narrowly worded deliberateness instruction.

38
See, e.g., Penry II, 532 U.S. at 797; Penry I, 492 U.S. at 322.

Significantly, the Supreme Court has never held that the

deliberateness issue alone is broad enough to give full effect to

mitigating evidence that also bears on a defendant’s moral

culpability; indeed the Court’s most recent opinion in Smith v.

Texas suggests the contrary. There, the Court characterized Smith’s

evidence as follows:

(1) he had been diagnosed with potentially organic
learning disabilities and speech handicaps at an early
age; (2) he had a verbal IQ score of 75 and a full IQ of
78 and, as a result, had been in special education
classes throughout most of his time in school; (3)
despite his low IQ and learning disabilities, his
behavior at school was often exemplary; (4) his father
was a drug addict who was involved with gang violence and
other criminal activities, and regularly stole money from
family members to support a drug addiction; and (5) he
was only 19 when he committed the crime.

Smith, 542 U.S. at 41. Considering the nature of this evidence, the

Court noted that, “just as in Penry II, the burden of proof on the

State was tied by law to findings of deliberateness and future

dangerousness that had little, if anything, to do with the

mitigation evidence petitioner presented.” Id. at 48. Likewise,

Nelson’s mitigating evidence had relevance beyond the

deliberateness special issue insofar as it bore on his moral

culpability for the crime. Consequently, although the jury may have

been able to give partial effect to this evidence through the

deliberateness special issue, there is a reasonable likelihood that

39
it was unable to give full effect to this evidence, because it had

relevance beyond whether Nelson acted deliberately.

b. Future-Dangerousness Special Issue

Likewise, the future-dangerousness special issue cannot give

Nelson’s evidence full mitigating effect. The jury heard

conflicting evidence about the treatability of Nelson’s borderline

personality disorder and about the efficacy of any possible

treatment. According to the expert testimony, even assuming that

Nelson’s borderline personality disorder were treatable, success

would depend on many factors. Based on this evidence, the jury

could have easily concluded that it was unlikely that Nelson would

successfully complete treatment. The State’s expert, Dr. Grigson,

testified that there was insufficient information to make a

diagnosis of antisocial personality disorder, but repeatedly

emphasized that “in [his] opinion there is no question whatsoever

that [Nelson] will commit future acts of danger.” In contrast,

Nelson’s expert, Dr. Hickman, diagnosed Nelson with borderline

personality disorder. He further testified that, with treatment

consisting of incarceration, two to five years of intensive

psychotherapy two to three times a week, medication, and refraining

from drug and alcohol abuse, Nelson may not be continuing threat.

He opined that if Nelson did not receive treatment, he would pose

a danger to society. He also explained that “the last thing a

borderline wants to do is admit they are weak and vulnerable,” and

40
thus borderline patients often resist treatment. Indeed, in its own

closing, the State emphasized the strong possibility that Nelson

would not receive the treatment he needed to keep his borderline

personality disorder in check, and even if he did receive such

treatment, there were no guarantees that the therapy would be

effective to prevent future violence:

Dr. Hickman said, if, if, if, if he is imprisoned long
enough, if he undergoes psychotherapy, if he chooses to
take his medication, and if he leaves dope and alcohol
alone, then maybe, maybe he won’t be a future danger.
Look at Special Issue Number Two, ladies and gentlemen.
There is not an asterisk next to that, there is not
something referring you down here that says if, if, if,
if. We look at the defendant right now, and right now
even their witness [said], yes, he may be a danger.

Based on the expert testimony at trial, the jury might have

concluded that Nelson could be treated, and therefore, it could

have given some effect to this mitigating evidence within the

context of the future-dangerousness special issue. But if the jury

concluded that the condition was not treatable or that treatment

was improbable, as the State argued, it would necessarily have to

answer “yes” to the special issue. Just as in Penry I and Penry II,

it is likely that a juror considering Nelson’s evidence of

borderline personality disorder would have felt that he could give

the evidence only one possible effect via the future-dangerousness

issue: Such a juror would have seen the evidence as only

aggravating, because Nelson’s borderline personality disorder and

the difficulty of treating it increase the likelihood that Nelson

41
will act out violently again. Consequently, there would be no

vehicle to give mitigating effect to his evidence of borderline

personality disorder, i.e., no way for the jury to express its

conclusion that even though he is likely to be dangerous in the

future, his mental illness makes him unworthy of the death penalty.

Cf. Penry I, 492 U.S. at 302 (“[A] reasonable juror could well have

believed that there was no vehicle for expressing the view that

Penry did not deserve to be sentenced to death based upon his

mitigating evidence.”). And, also similar to Penry I, the jury was

likely precluded from interpreting the future-dangerousness issue

in a way that gave effect to the major mitigating thrust of the

evidence, that it tends to lessen Nelson’s moral culpability for

the crime. See Penry I, 492 U.S. at 322-24.

The State and the dissenting opinions of Chief Judge Jones and

Judge Owen argue that the evidence at issue here is more comparable

to the evidence of youth at issue in Johnson and Graham.

Specifically, they contend that, because borderline personality

disorder can be a “transient” condition like youth, a jury could

believe that Nelson would be less dangerous in the future, thereby

giving full mitigating effect to the evidence. We disagree. This

argument erroneously analogizes evidence of youth and evidence of

mental illness. The Supreme Court in Johnson held that the future-

dangerousness issue could give effect to both mitigating aspects of

youth–likelihood of future violent behavior and moral

42
culpability–due to the uniquely transient nature of youth. See

Johnson, 509 U.S. at 368 (“The relevance of youth as a mitigating

factor derives from the fact that the signature qualities of youth

are transient; as individuals mature, the impetuousness and

recklessness that may dominate in younger years can subside. . . .

[T]here is ample room in the assessment of future dangerousness for

a juror to take account of the difficulties of youth as a

mitigating force in the sentencing determination.”); see also

Eddings, 455 U.S. at 115 (“[Y]outh is more than a chronological

fact. It is a time and condition of life when a person may be most

susceptible to influence and to psychological damage.”). In this

sense, the Supreme Court, which has never endorsed the extension of

Johnson and Graham to treatable mental illness, has treated youth

as sui generis, because it is a condition that is certain to pass.6

In contrast, as acknowledged by Nelson’s own expert witness, there

was no guarantee that Nelson’s borderline personality disorder

6
The sui generis nature of youth in the death penalty context
is perhaps best evidenced by the Supreme Court’s categorical
holding in Roper v. Simmons, 543 U.S. 551 (2005), that the
Constitution prohibits the execution of persons who were under
eighteen years of age at the time of their crime. See id. at 569
(noting that three unique characteristics of youth mitigate
juveniles’ moral culpability for certain behavior: “[a] lack of
maturity and an underdeveloped sense of responsibility[, which]
. . . often result in impetuous and ill-considered actions and
decisions”; increased “vulnerab[ility] or susceptib[ility] to
negative influences and outside pressures, including peer
pressure”; and “that the character of a juvenile is not as well
formed as that of an adult. The personality traits of juveniles are
more transitory, less fixed”) (citing Johnson, 509 U.S. at 367;
Eddings, 455 U.S. at 115).

43
would diminish over time. Dr. Hickman noted that, although

borderline personality disorder is treatable, success is by no

means certain and is expressly conditioned on intensive therapy

that, a juror could conclude, the Texas prison system is unlikely

to provide. In fact, Dr. Hickman’s trial testimony indicated that,

because of the severity of borderline personality disorder and

patients’ common resistance to therapy, successful treatment is

often the exception rather than the rule. Unlike a jury considering

evidence of youth, therefore, a reasonable likelihood existed that

a jury considering Nelson’s mitigating evidence of borderline

personality disorder would have felt foreclosed from giving full

mitigating effect to Nelson’s evidence of his disorder via the

future-dangerousness issue. Thus, based on the principles

announced in Penry I and its progeny, the future-dangerousness

special issue, like the deliberateness special issue, provided a

constitutionally insufficient vehicle to allow a jury to express

its reasoned moral response and give full effect to Nelson’s

mitigating evidence. The Texas Court of Criminal Appeals’s holding

to the contrary is an unreasonable application of clearly

established federal law as announced by the Supreme Court.

This is not simply a matter of disagreement with the state

court’s conclusion that the jury could consider and give effect to

Nelson’s mitigating evidence through the special-issues sentencing

scheme. We are mindful that under AEDPA a federal court may not

44
grant habeas relief simply because it disagrees with the state

court’s resolution of an issue; it may grant relief only if the

state court’s decision was contrary to or an unreasonable

application of clearly established Supreme Court precedent. See 28

U.S.C. § 2254(d)(1). Indeed, Chief Judge Jones’s dissent invokes

this standard, asserting that our approach to the future-

dangerousness issue improperly “relies upon a string of

hypotheticals to create [a] Penry violation” and adopts an

“attenuated theory of the jury deliberations [that] extends Penry

I far beyond its intended boundaries.” Chief Judge Jones’s Dissent

at 21 n.19; see also Judge Owen’s Dissent. But rather than

extending the reach of Penry I or any other case in violation of

the AEDPA standard of review, our approach merely follows the

Supreme Court’s longstanding directive to determine only “whether

the evidence is of such a character that it ‘might serve as a basis

for a sentence less than death,’” which was clearly established

federal law at the time that Nelson’s conviction became final.

Tennard, 542 U.S. at 287 (quoting Skipper, 467 U.S. at 5) (emphasis

added).

In contrast, the alternative approach, upon which the

dissenting opinions of Chief Judge Jones and Judge Owen base their

conclusions that the Texas Court of Criminal Appeals did not

unreasonably apply clearly established federal law, would require

us, sitting as a federal appellate habeas court, to weigh the

45
evidence presented at sentencing in a manner that the Supreme Court

in Tennard held was an unreasonable application of clearly

established federal law at least as far back as 1991. See id. at

286-87. Like Nelson’s case, Tennard reached the Supreme Court on

federal habeas review and was governed by the AEDPA standard. As

noted above, we measure clearly established federal law for AEDPA

purposes as of the date that the defendant’s conviction became

final. While Tennard’s conviction became final in 1991, Nelson’s

conviction did not become final until 1994. See supra note 4.

Therefore, the principles that the Supreme Court in Tennard held

had been clearly established in 1991 were certainly clearly

established by the time that Nelson’s conviction became final in

1994. Although Chief Judge Jones and Judge Owen correctly recite

the AEDPA standard in their dissenting opinions, they simply fail

to accept that Tennard--which stood for the propositions that (1)

a reviewing court may not reweigh or reassess the mitigating

evidence presented at sentencing, and (2) a jury must be able to

give effect to the impact of that mitigating evidence on the

defendant’s moral culpability via the special issues--also set

forth the federal law that was clearly established for the purposes

of Nelson’s case.

Specifically, the dissenting opinions of Chief Judge Jones and

Judge Owen run afoul of Tennard by assuming that the jury in

Nelson’s case found that Nelson’s borderline personality disorder

46
was treatable, and that the Texas Court of Criminal Appeals would

therefore not have acted unreasonably in treating it as akin to the

mitigating evidence of youth at issue in Graham and Johnson.

However, we know from the record only that the jury determined that

Nelson was a future danger after hearing conflicting expert

testimony about whether he suffered from borderline personality

disorder and, if so, whether it could be treated. Despite the

purportedly definitive reading of the record contained in Chief

Judge Jones’s dissent, we cannot be certain of the precise reasons

for the jury’s future-dangerousness determination. Instead, we know

that the jury could have arrived at its conclusion for any of the

following reasons: (1) the jury believed that Nelson suffered from

borderline personality disorder but that the disorder was not

treatable; (2) the jury believed that Nelson suffered from

borderline personality disorder that was treatable but that some

other factor rendered Nelson a future danger; or (3) the jury did

not believe that Nelson actually suffered from borderline

personality disorder. To conclude that the mental illness at issue

was treatable in the face of these multiple possibilities, the

dissenting opinions of Chief Judge Jones and Judge Owen reassess

and reweigh the evidence presented at sentencing, even though we,

47
sitting as a federal appellate habeas court, have no way of knowing

why the jury determined that Nelson was a future danger.7

Weighing the evidence in this manner violates the Supreme

Court’s express admonition in Tennard that we not substitute our

own interpretation of the evidence for that of the jury or assess

the strength of the mitigating evidence presented except “insofar

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

the circumstances of the crime is unlikely to have any tendency to

mitigate the defendant’s culpability.” Tennard, 542 U.S. at 286.

Just as the Supreme Court in Penry I made no determination as to

whether the jury actually believed that Penry was mentally retarded

based on the conflicting trial evidence, we may not conduct an

7
Compare Johnson, in which the Supreme Court singled out
youth, as opposed to other conditions that could be transitory,
because its ephemeral nature is bound up in its mitigating impact
such that a juror could not reasonably assess youth as a mitigating
factor without taking into account this aspect of transience. See
Johnson, 509 U.S. at 368 (emphasizing that the impact of youth on
the defendant’s conduct “is not independent of an assessment of
personal culpability”). Because this transient quality is so
subsumed within the mitigating relevance of youth, the Court did
not inquire whether the jury might have found that Johnson was
likely to mature as he grew up before it held that the jury could
give full effect to youth through the future-dangerousness issue;
the undisputed chronological fact of the defendant’s age was
enough. In contrast, under the approach favored by the dissenting
opinions of Chief Judge Jones and Judge Owen in this case, when
presented with mitigating evidence of a possibly treatable mental
illness, an appellate habeas court must conduct such an inquiry
into the jury’s findings and weigh the evidence to determine
whether the illness is treatable. Perhaps for this very reason, the
Supreme Court, which spoke about youth in very specific terms in
Johnson, has never extended Johnson’s reasoning to any other
mitigating evidence--including possibly treatable mental illness--
that might have transient characteristics.

48
independent review of the conflicting evidence in this case to make

a determination as to whether the jury actually believed that

Nelson’s mental illness was treatable. In short, under Tennard,

which clarified the clearly established law in this area as of

1991, we may not graft a treatability test based on our view of the

strength of the evidence onto the low relevance threshold as the

dissenting opinions of Chief Judge Jones and Judge Owen propose,

and neither may the Texas Court of Criminal Appeals. Rather, the

only question we may ask regarding the jury’s interpretation of the

mitigating evidence presented at trial is “simply whether the

evidence is of such a character that it ‘might serve as a basis for

a sentence less than death.’” Id. at 287 (quoting Skipper, 467 U.S.

at 5) (emphasis added).

Further, the Supreme Court has made it clear in Boyde and in

Johnson (both issued before Nelson’s conviction became final) that

once the low relevance threshold is satisfied, rather than

inquiring into or second guessing the jury’s interpretation of the

trial evidence, all a court must determine is whether a reasonable

likelihood exists that the jury applied the instructions in a

manner that precluded it from giving effect to the defendant’s

mitigating evidence as it pertains to the defendant’s moral

culpability. In the instant case, given the conflicting testimony

regarding the treatability of Nelson’s mental illness, there is

certainly a reasonable likelihood that the jury felt precluded from

49
giving full effect to the impact of the evidence on Nelson’s moral

culpability via the future-dangerousness issue because it found

that Nelson’s illness could not be treated. See Johnson, 509 U.S.

at 367 (explaining that the Boyde “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”).

Therefore, rather than “extend[ing] Penry I far beyond its

intended boundaries, without instructions from the Supreme Court,”

Chief Judge Jones’s Dissent at 21 n.19, our approach is firmly

grounded in Supreme Court precedent and consistent with the AEDPA

standard of review. The alternative upon which the dissenting

opinions of Chief Judge Jones and Judge Owen rely to affirm the

state court’s denial of habeas relief in this case--that we scour

the trial record for evidence of treatability and substitute our

interpretation of the evidence for that of the jury’s--is not

merely incorrect, but is an unreasonable application of clearly

established federal law as announced by the Supreme Court. See

Tennard, 542 U.S. at 288-89; see also Smith, 543 U.S. at 38; Penry

II, 532 U.S. at 803; Penry I, 492 U.S. at 323; Skipper, 467 U.S. at

5.

This case is therefore different from the Supreme Court’s

recent decision in Brown v. Payton, 544 U.S. 133, 147 (2005), which

Judge Clement discusses in her dissenting opinion. In Payton, the

50
Supreme Court reversed the Ninth Circuit’s grant of habeas relief

to a death-row petitioner who challenged the constitutionality of

California’s “factor (k)” jury instruction, concluding that the

Ninth Circuit did not give proper deference to the state court’s

decision. Specifically, the Court held that “[i]t was not

unreasonable for the state court to determine that the jury most

likely believed that the evidence in mitigation, while within the

reach of the factor (k) instruction, was simply too insubstantial

to overcome the arguments for imposing the death penalty.” Id.

(emphasis added). In Payton, the state court held that the

mitigating evidence of the defendant’s religious conversion fell

within the reach of the catch-all instruction directing the jury to

consider “‘[a]ny other circumstance which extenuates the gravity of

the crime even though it is not a legal excuse for the crime,’”

although the prosecutor argued to the jury that it could not

consider this evidence. Payton, 544 U.S. at 137 (alteration in

original) (quoting Cal. Penal Code Ann. § 190.3 (West 1988)). In

reversing the Ninth Circuit’s determination that the state court

erred in denying habeas relief, the Supreme Court emphasized that

the state court’s holding was a reasonable interpretation of its

prior decision in Boyde, 494 U.S. 370, in which the Court upheld

the validity of the factor (k) instruction in similar

circumstances. See Payton, 544 U.S. at 144 (“As the California

Supreme Court recognized, like in Boyde, for the jury to have

51
believed it could not consider Payton’s mitigation evidence, it

would have had to believe that the penalty phase served virtually

no purpose at all.”). Accordingly, the Ninth Circuit had deviated

from the deferential AEDPA standard when it reversed the state

court’s determination.

Nevertheless, Judge Clement’s dissenting opinion, which relies

on Payton to conclude that this court should defer to the Texas

Court of Criminal Appeals’s denial of habeas relief, fails to

recognize that “[t]he [AEDPA] standard is demanding but not

insatiable; . . . ‘[d]eference does not by definition preclude

relief.’” Miller-El v. Dretke, 545 U.S. 231, 125 S. Ct. 2317, 2325

(2005) (third alteration in original) (quoting Miller-El v.

Cockrell, 537 U.S. 322, 340 (2003)). In contrast to the

circumstances at issue in Payton, Nelson’s mitigating evidence

clearly has relevance beyond the issues of deliberateness and

future dangerousness under Penry I and its progeny. If the jury

concluded that Nelson was likely to be dangerous in the future

based on his mental disorder and abusive childhood, but also

concluded that this evidence rendered him less morally culpable, it

had no way to give effect to the mitigating aspect of that evidence

through the two special issues. See Smith, 543 U.S. at 38; Tennard,

542 U.S. at 288-89; Penry II, 532 U.S. at 803; Penry I, 492 U.S. at

323. Moreover, Tennard precludes a reviewing court from reweighing

the evidence presented at trial to determine whether the alleged

52
mitigating circumstance is treatable and therefore transient.

Tennard, 542 U.S. at 286-87. Thus, unlike the state court’s

determination in Payton, where the Supreme Court in Boyde had

previously held that the challenged California instruction was

broad enough to allow the jury to consider the impact of the

mitigating evidence on the defendant’s moral culpability, it was

unreasonable for the Texas Court of Criminal Appeals in this case

to conclude that Nelson’s mitigating evidence was within the reach

of the jury through the narrow special issues, given the law

clearly established by the Supreme Court in Penry I and its

progeny.

Finally, in support of its argument that evidence of a

potentially treatable mental disorder should be analyzed similarly

to the Court’s consideration of youth, the State relies on Fifth

Circuit case law that has erroneously interpreted Penry as

requiring that the mitigating evidence be given only “some effect.”

Specifically, it relies on this court’s opinion in Lucas v.

Johnson, 132 F.3d 1069 (5th Cir. 1998), in which the panel held

that the special issues gave constitutionally sufficient effect to

Lucas’s evidence of schizophrenia coupled with a troubled

upbringing. See id. at 1083 (“[The] prospect of medical treatment

placed the evidence of his mental illness and abusive childhood

within ‘the effective reach of the sentencer’ as a potential

mitigating factor with respect to the second issue, that is, the

53
jury could have considered whether, in an institutional setting,

the probability that Lucas posed as a future danger to society was

not so great as to merit imposition of the death sentence.”). In

reaching this conclusion, Lucas cited the Supreme Court’s decisions

in Johnson and Graham for the proposition that “Penry’s application

has since been limited to that narrow class of situations in which

the petitioner’s mitigating evidence was placed beyond the jury’s

effective reach,” and that the evidence in that case was within the

jury’s effective reach, because the jury could have given it

partial effect. Id. at 1082. As explained above, the Supreme Court

has clearly held that the standard is full effect. Thus, continued

reliance on the partial-effect methodology is erroneous, because

that standard fails to take into account, as Penry I and its

progeny require, a jury’s inability to give mitigating effect to a

defendant’s moral culpability via the future-dangerousness issue.

See Smith, 543 U.S. at 38; Tennard, 542 U.S. at 288-89; Penry II,

532 U.S. at 803; Penry I, 492 U.S. at 323. Moreover, and most

importantly, AEDPA requires us to determine whether the state court

unreasonably applied “clearly established federal law as announced

by the Supreme Court,” not by the Fifth Circuit. 28 U.S.C.

§ 2254(d)(1). Accordingly, to the extent that this court’s cases

have applied a less-than-full-effect standard to Penry claims in

the past, i.e., to the extent that past cases failed to account for

the jury’s ability to give effect to the impact of mitigating

54
evidence on a defendant’s moral culpability via the special issues,

those cases were based on an erroneous interpretation of Supreme

Court precedent. See Smith, 543 U.S. at 38 (holding that a

sentencing scheme that fails to “give full consideration and full

effect to mitigating circumstances in choosing the defendant’s

appropriate sentence” is “constitutionally inadequate” under Penry

I and its progeny) (internal quotation marks and citations

omitted).

3. Sufficiency of Nelson’s Mitigation Evidence

We also reject the argument that Nelson’s evidence of

borderline personality disorder is insufficient to warrant relief

based on Penry. The Supreme Court has recognized that

gravity has a place in the relevance analysis, insofar as
evidence of a trivial feature of the defendant’s
character or the circumstances of the crime is unlikely
to have any tendency to mitigate the defendant’s
culpability. See Skipper [v. South Carolina, 476 U.S. 1,]
7, n.2 (“We do not hold that all facets of the
defendant’s ability to adjust to prison life must be
treated as relevant and potentially mitigating. For
example, we have no quarrel with the statement . . . that
‘how often [the defendant] will take a shower’ is
irrelevant to the sentencing determination[.”).].

Tennard, 542 U.S. at 286-87. The Tennard Court was discussing

evidence that had no probative worth in the jury’s consideration of

a defendant’s moral culpability, not evidence that the jury may

choose to believe or disbelieve. In contrast, the strength of

Nelson’s evidence of borderline personality disorder and abusive

childhood “goes to the credibility of [Nelson’s] mitigation

55
evidence, which should be judged by the jury in answering effective

supplemental instructions addressing the mitigation evidence.” Blue

v. Cockrell, 298 F.3d 318, 322 (5th Cir. 2002), abrogated on other

grounds by Tennard, 542 U.S. 274. Further, any argument that this

court should dispose of Nelson’s Penry claim on grounds that the

evidence is insufficient endorses precisely the type of judicial

evidence-weighing that the Court in Tennard expressly warned

against:

[T]o say that only those features and circumstances that
a panel of federal appellate judges deems to be “severe”
(let alone “uniquely severe”) could have such a tendency
is incorrect. Rather, the question is simply whether the
evidence is of such a character that it “might serve ‘as
a basis for a sentence less than death,’” Skipper, [467
U.S.] at 5.

Tennard, 542 U.S. at 286-87. Nowhere does Tennard prescribe (or

even allow for) a balancing test that weighs the strength of the

mitigating evidence against that of the aggravating evidence. Such

reasoning runs afoul of the low relevance standard that the Court

emphasized in Tennard, i.e., any tendency to mitigate the

defendant’s culpability, and comes perilously close to applying a

heightened-relevance test similar to the one that the Court struck

down in Tennard. Accordingly, we also reject this argument.

4. Harmless Error

56
 Finally, we reject the State’s argument that any Penry error

in this case is subject to harmless-error analysis under Brecht v.

Abrahamson, 507 U.S. 619, 622-23 (1993), which applies to error

that is “amenable to harmless-error analysis because it ‘may . . .

be quantitatively assessed in the context of other evidence

presented in order to determine [the effect it had on the trial].’”

Id. at 629 (omission and alteration in original) (quoting Arizona

v. Fulminante, 499 U.S. 279, 309 (1991)). The State advances this

harmless-error theory for the very first time on en banc rehearing

in a discussion that consumes less than a page of its brief; it did

not argue the applicability of harmless error before this court

during Nelson’s original habeas appeal, before the Supreme Court on

certiorari review, or before this court when we initially

reconsidered Nelson’s habeas appeal on remand in light of Tennard.

It was not until a concurring panel member in the most recent

Nelson panel opinion suggested that Brecht might be applicable that

the State argued harmless error in its en banc brief. The State’s

failure to argue this point prior to now is understandable because

the Supreme Court has never applied a harmless-error analysis to a

Penry claim or given any indication that harmless error might apply

in its long line of post-Furman cases addressing the jury’s ability

to give full effect to a capital defendant’s mitigating evidence.

See generally Tennard, 542 U.S. 274; Penry II, 532 U.S. 782; Penry

I, 492 U.S. 302; Eddings, 455 U.S. 104; Lockett, 438 U.S. 586.

57
Indeed, the Penry II Court applied the Brecht harmless-error test

to Penry’s claim that the prosecution’s use of a psychiatrist’s

report violated his Fifth Amendment rights, see Penry II, 532 U.S.

at 795. Conspicuously absent from the discussion regarding Penry’s

Eighth Amendment claim, however, is any mention of the harmless-

error test in either the majority or the dissenting opinions.

Implicit in the Court’s failure to apply harmless error in

cases where the jury has been precluded from giving effect to a

defendant’s mitigating evidence is the recognition that a Penry

error deprives the jury of a “vehicle for expressing its ‘reasoned

moral response to the defendant’s background, character, and

crime,’” which precludes it from making “‘a reliable determination

that death is the appropriate sentence.’” Penry II, 532 U.S. at 797

(quoting Penry I, 492 U.S. at 328, 319) (internal quotation marks

omitted) (emphasis added). This reasoned moral judgment that a jury

must make in determining whether death is the appropriate sentence

differs from those fact-bound judgments made in response to the

special issues. It also differs from those at issue in cases

involving defective jury instructions in which the Court has found

harmless-error review to be appropriate. Cf. Neder v. United

States, 527 U.S. 1, 8-15 (1991) (applying harmless-error review

where the jury instructions omitted an element of the offense,

reasoning that, given the evidence presented, the verdict would

have been the same had the jury been properly instructed); Johnson

58
v. United States, 520 U.S. 461, 468-69 (1997) (applying harmless-

error review where the jury instructions omitted the materiality

element of the perjury charge, noting that the error did not

warrant correction in light of the “overwhelming” and

“uncontroverted” evidence supporting materiality). Given that the

entire premise of the Penry line of cases rests on the possibility

that the jury’s reasoned moral response might have been different

from its answers to the special issues had it been able to fully

consider and give effect to the defendant’s mitigating evidence, it

would be wholly inappropriate for an appellate court, in effect, to

substitute its own moral judgment for the jury’s in these cases.

See Tennard, 542 U.S. at 286-87 (“[T]o say that only those features

and circumstances that a panel of federal appellate judges deems to

be ‘severe’ (let alone ‘uniquely severe’) could have such a

tendency [to serve as a basis less than death] is incorrect.

Rather, the question is simply whether the evidence is of such a

character that it ‘might serve “as a basis for a sentence less than

death”’ (quoting Skipper, 467 U.S. at 5)); cf. Sullivan v.

Louisiana, 508 U.S. 275, 281 (1993) (refusing to apply harmless

error where the jury was improperly instructed on the burden of

proof at the guilt/innocence phase, noting that “the essential

connection to a ‘beyond a reasonable doubt’ factual finding cannot

be made where the instructional error consists of a misdescription

of the burden of proof, which vitiates all the jury’s findings. A

59
reviewing court can only engage in pure speculation–its view of

what a reasonable jury would have done. And when it does that, ‘the

wrong entity judge[s] the defendant guilty’” (quoting Rose v.

Clark, 478 U.S. 570, 578 (1986)).

Therefore, given the Supreme Court’s refusal to allow an

appellate court to substitute its own moral judgment for a moral

judgment that the jury was unable to make in a Penry case, we

decline to do so now.8

III. CONCLUSION

At the time that Nelson’s conviction became final, the Supreme

Court had clearly established that the relevant inquiry is whether

there was a reasonable likelihood that the jury would interpret the

Texas special issues in a manner that precluded it from fully

considering and giving full effect to all of the defendant’s

mitigating evidence. For the foregoing reasons, we conclude that

there is a reasonable likelihood that the jury was precluded from

giving full consideration and full effect to Nelson’s mitigating

evidence via the Texas special issues; therefore the state court’s

8
The State’s reliance on Calderon v. Coleman, 525 U.S. 141
(1998), in support of its argument that the Brecht harmless-error
test is applicable is misplaced. Coleman involved a jury
instruction that gave the jury inaccurate information on the
governor’s power to commute a sentence, which the lower court found
might have misled the jury and distracted it from the mitigating
evidence presented. Coleman is not at all comparable to cases
involving Penry violations, where the jury is precluded from giving
its reasoned moral response to the defendant’s mitigating evidence.

60
determination that the special issues were constitutional as

applied to Nelson’s case was unreasonable. Accordingly, we REVERSE

the district court’s denial of habeas relief and REMAND with

instructions to grant the writ of habeas corpus.

61
DENNIS, CIRCUIT JUDGE, CONCURRING IN THE JUDGMENT AND ASSIGNING

ADDITIONAL REASONS.

In this case we must decide whether petitioner, Billy Ray

Nelson, was sentenced to death in violation of the Eighth Amendment

because the jury was not instructed that it could consider and give

effect to his mitigating evidence by deciding between the death

penalty or a lesser sentence of life imprisonment. The three-judge

panel of this court concluded that Nelson’s death penalty must be

affirmed, but its members did not agree upon a majority rationale

or opinion. Chief Judge Jones issued an opinion concluding that the

pre-1991 Texas capital sentencing statute as applied to Nelson’s

mitigating evidence and case did not violate the Eighth Amendment

and affirming the district court’s judgment denying Nelson’s federal

habeas corpus petition. I filed an opinion concurring in that

result, concluding that, under the Supreme Court’s decisions in

Penry v. Lynaugh, 492 U.S. 302 (1989) (“Penry I”) and other cases,

because Nelson had introduced relevant mitigating evidence of

impairment by mental disease, childhood abuse, and chemical abuse

and dependency, the State’s use of the pre-1991 Texas statutory

scheme to sentence him to death violated his constitutional rights.

However, I concluded that under the harmless error test of Brecht

v. Abrahamson, 507 U.S. 619 (1993), the constitutional violation was

harmless error. Judge Stewart also concurred in the result, but he

did not join either opinion or assign reasons.

62
 After rehearing the case en banc, the majority of this court

has now decided that the application of the pre-1991 Texas statutory

capital sentencing scheme to Nelson’s case violated the Eighth

Amendment and that this violation cannot be disregarded as harmless

error. I join fully in the majority’s conclusions and agree

substantially with its reasons. The majority’s analysis of Nelson’s

Penry I claim is similar to that set forth in my separate panel

opinions here and in other cases.1 Accordingly, I join the

majority’s decision and assign additional reasons hereafter.

On the harmless error issue, I acknowledge my mistake at the

panel level in undertaking a harmless error analysis of the

constitutional defect in this case. After considering the parties’

briefs and conducting my own additional research, I now see that (1)

the State waived its harmless error argument by not urging it prior

to this en banc rehearing and (2) the constitutional deficiency in

the capital sentencing mechanism as applied to this case was a

structural defect, not a mere constitutional trial error, and

1
See, e.g., Cole v. Dretke, 443 F.3d 441, 442-51 (5th Cir.
2006) (Dennis, J., dissenting); Nelson v. Dretke, 442 F.3d 282,
288-309 (5th Cir. 2006) (Dennis, J., concurring in the judgment);
Robertson v. Cockrell, 325 F.3d 243, 274-80 (5th Cir. 2003) (en
banc) (Dennis, J., dissenting); Tennard v. Cockrell, 284 F.3d 591,
597-604 (5th Cir. 2002) (Dennis, J., dissenting); Penry v. Johnson,
215 F.3d 504, 513-16 (5th Cir. 2000) (Dennis, J., dissenting). I am
grateful to my law clerks who worked with me on these opinions and
especially to three, Kevin Kneupper, Jelani Jefferson, and Bradley
Meissner, who helped in preparing this en banc concurring opinion.

63
therefore cannot be subjected to harmless error analysis.2 The

reasons for these conclusions are set forth in the final section of

this opinion.

1. The Eighth Amendment Requirement Of Individualized Sentencing
Obliges States, Including Texas, To Enable Capital Sentencers
To Select The Appropriate Penalty After Full Consideration Of
The Defendant’s Mitigation Evidence.

The Supreme Court’s recognition of the constitutional

requirements regarding individualized sentencing began in 1976, when

the Court issued a series of major decisions concerning the

constitutionality of the death penalty that altered the fundamentals

of the Court’s death penalty jurisprudence.3 These cases dealt with

death penalty statutes enacted by various states in response to the

Supreme Court’s decision in Furman v. Georgia, 408 U.S. 238 (1972),

which had previously invalidated the death penalty. None of the

2
In my dissent from a previous decision, I reached the same
conclusion with respect to the Penry I violation in that case,
i.e., that it was a structural defect, not a trial error, and
therefore could not be subjected to harmless error analysis. See
Hernandez v. Johnson, 248 F.3d 344, 378-81 (5th Cir. 2001) (Dennis,
J., dissenting). Later, however, I became dissuaded of that view
by my imperfect understanding of the relationship between the
Supreme Court’s decisions in Johnson v. Texas, 509 U.S. 350 (1993),
Boyde v. California, 494 U.S. 370 (1990), Calderon v. Coleman, 525
U.S. 141 (1998), and the Court’s structural defect/harmless error
jurisprudence. After additional study and a better understanding of
these Supreme Court decisions, I have returned to my original view
that the type of constitutional violation here is a structural
defect, not a trial error. I have set forth the reasons for my
error and the need for its correction in the last section of this
opinion dealing with the harmless error question.
3
See Gregg v. Georgia, 428 U.S. 153 (1976); Proffitt v.
Florida, 428 U.S. 242 (1976); Jurek v. Texas, 428 U.S. 262 (1976);
Woodson v. North Carolina, 428 U.S. 280 (1976); Roberts v.
Louisiana, 428 U.S. 325 (1976).

64
five cases produced a majority opinion, but several major, enduring

principles nevertheless emerged from these cases. First, states

cannot make the imposition of the death penalty mandatory from any

class of crimes. See Woodson, 428 U.S. at 302-305; Roberts, 428

U.S. at 335-36; see also Sumner v. Shuman, 483 U.S. 66, 74 (1987).

Second, state death penalty statutes must limit and guide the

sentencer’s discretion to impose the death penalty in order to

prevent its arbitrary and capricious application. See, e.g.,

Johnson v. Texas, 509 U.S. 350, 360 (1993) (“In the five cases, the

controlling joint opinion of three Justices reaffirmed the principle

of Furman that ‘discretion must be suitably directed and limited so

as to minimize the risk of wholly arbitrary and capricious

action.’”) (quoting Gregg, 428 U.S. at 189). Third, the capital

sentencer must be allowed to consider and give effect to the unique

circumstances of the individual defendant and his particular crime

when determining the appropriate sentence. See, e.g., Shuman, 483

U.S. at 74 (“In the two cases striking down as unconstitutional

mandatory capital-sentencing statutes, the opinions stressed that

one of the fatal flaws in those sentencing procedures was their

failure to permit presentation of mitigating circumstances for the

consideration of the sentencing authority.”). These underlying

principles have continued to guide the Supreme Court’s death penalty

jurisprudence.

Prior to Penry I, and certainly before Nelson’s conviction

became final in 1994, the relevant Supreme Court decisions had

65
clearly established the Eighth Amendment requirement of

individualized sentencing in capital cases. See, e.g., McCleskey

v. Kemp, 481 U.S. 279, 303-04 (1987) (noting that “the Court has

imposed a number of requirements on the capital sentencing process

to ensure that capital sentencing decisions rest on the

individualized inquiry contemplated in Gregg” and stating that “the

Constitution limits a State’s ability to narrow a sentencer’s

discretion to consider relevant evidence that might cause it to

decline to impose the death sentence”); Zant v. Stephens, 462 U.S.

862, 879 (1983) (“What is important at the selection stage is an

individualized determination on the basis of the character of the

individual and the circumstances of the crime.”); Eddings v.

Oklahoma, 455 U.S. 104, 113-14 (1982) (holding that the capital

sentencer may not be prevented from considering any relevant

mitigating evidence presented by the defendant); Bell v. Ohio, 438

U.S. 637, 642 (1978) (plurality opinion) (same); Lockett v. Ohio,

438 U.S. 586, 604-05 (1978) (plurality opinion) (same). That is,

in order to constitutionally impose and carry out the death penalty,

a capital sentencer must at least be enabled (although it need not

be instructed) (1) to make an individualized assessment of the

defendant’s moral culpability and deathworthiness, based on a full

consideration of each defendant’s mitigating evidence, as well as

the character and record of the individual offender and the

circumstances of the particular offense; and (2) to give full effect

66
to that evidence by selecting the appropriate sentence, either life

imprisonment or death, according to each defendant’s level of moral

culpability and deathworthiness. See Cole, 443 F.3d at 443-44

(Dennis, J., dissenting); Nelson, 442 F.3d at 303-06 (Dennis, J.,

concurring in the judgment); Tennard, 284 F.3d at 599-601 (Dennis,

J., dissenting).

Nor is the Eighth Amendment’s concern with individual

culpability limited to the selection phase;4 rather, the principle

that capital punishment must be reserved for the most culpable

perpetrators of the most serious crimes “is implemented throughout

the capital sentencing process.” Roper v. Simmons, 543 U.S. 551,

568 (2005). Indeed, the imperative that only the most culpable

offenders be sentenced to death has also long animated the Court’s

decisions holding that certain classes of crimes and offenders are

categorically ineligible for the death penalty, including persons

under the age of 18 at the time of their crime, see id. at 569-75

(holding that reduced culpability of juveniles “demonstrate[s] that

juvenile offenders cannot with reliability be classified among the

worst offenders”); see also Thompson v. Oklahoma, 487 U.S. 815, 835,

836-38 (1988) (plurality opinion) (prohibiting imposition of death

4
In Tuilaepa v. California, 512 U.S. 967, 971-72 (1994), the
Court recognized that there were two phases of the capital
sentencing process: the “eligibility decision,” which serves to
narrow the class of defendants eligible for the death penalty, and
the “selection decision,” “where the sentencer determines whether
a defendant eligible for the death penalty should in fact receive
that sentence.”

67
penalty for persons under 16 at the time of their crime; “The

reasons why juveniles are not trusted with the privileges and

responsibilities of an adult also explain why their irresponsible

conduct is not as morally reprehensible as that of an adult.”); the

mentally retarded, see Atkins v. Virginia, 536 U.S. 304 (2002)

(“Their deficiencies do not warrant an exemption from criminal

sanctions, but diminish their personal culpability.”); persons

convicted of raping an adult woman, see Coker v. Georgia, 433 U.S.

584, 598 (1977) (“Rape is without doubt deserving of serious

punishment; but in terms of moral depravity and of the injury to the

person and to the public, it does not compare with murder, which

does involve the unjustified taking of human life.”); murderers

whose killings do not involve an elevated level of moral depravity

or any other aggravating circumstance, see Godfrey v. Georgia, 446

U.S. 420, 433 (1980) (plurality opinion) (reversing death sentence

where “[t]he petitioner’s crimes cannot be said to have reflected

a consciousness materially more ‘depraved’ than that of any person

guilty of murder”); and persons convicted of felony murder who lack

a sufficiently culpable mental state, see Enmund v. Florida, 458

U.S. 782, 798 (1982) (“Enmund[’s] . . . culpability is plainly

different from that of the robbers who killed; yet the State treated

them alike and attributed to Enmund the culpability of those who

68
killed the Kerseys. This was impermissible under the Eighth

Amendment.”).5

2. Penry I Recognized That The Eighth Amendment Requires A
Capital Sentencing Jury To Have The Ability To Both
Consider And Give Effect To All Relevant Mitigating
Evidence In Choosing A Sentence.

Given the pre-existing Eighth Amendment requirement that a

capital sentencer must have individualized sentencing capability,

it is not surprising that the Supreme Court in Penry I held that the

Texas sentencing scheme was unconstitutional as applied when the

Texas courts’ reading of the statute did not permit the jury as

sentencer to either assess the defendant’s culpability or select the

appropriate sentence. Consistent with the well established

individualized sentencing principles that it had held to be required

by the Eighth Amendment, the Supreme Court in Penry I held:

Underlying Lockett and Eddings is the principle that
punishment should be directly related to the personal
culpability of the criminal defendant. If the sentencer
is to make an individualized assessment of the
appropriateness of the death penalty, “evidence about the
defendant’s background and character is relevant . . . .”
Moreover, Eddings makes 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. Only then can we 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.
“Thus, the sentence imposed at the penalty stage should

5
See also Tison v. Arizona, 481 U.S. 137, 156-57 (1987)
(clarifying scope of Enmund, and noting that “[a] critical facet of
the individualized determination of culpability required in capital
cases is the mental state with which the defendant commits the
crime”).

69
 reflect a reasoned moral response to the defendant’s
background, character, and crime.”

Penry I, 492 U.S. at 319 (italics in original) (emphasis added)

(internal citations omitted). In Penry I, “[t]he State conceded at

oral argument . . . that if a juror concluded that Penry acted

deliberately and was likely to be dangerous in the future, but also

concluded that because of his mental retardation he was not

sufficiently culpable to deserve the death penalty, that juror would

be unable to give effect to that mitigating evidence under the

instructions given in this case.” Id. at 326. Consequently, the

Court held that “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 background 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.” Id. at 328 (emphasis

added).

3. The Supreme Court Has Consistently Reaffirmed Penry I’s
Holding That A Capital Sentencing Jury Must Be Able To
Consider And Give Effect To All Relevant Mitigating
Evidence In Selecting A Sentence.

In its immediately following 1990 term, the Supreme Court

repeatedly reaffirmed and applied the holding of Penry I, i.e., that

the Eighth Amendment requires that the capital sentencer be able to

consider and give effect to all relevant mitigating evidence in

selecting and imposing the appropriate life or death sentence. See

70
Boyde v. California, 494 U.S. 370, 377-78 (1990) (“The Eighth

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

to all relevant mitigating evidence offered by petitioner.”)

(citing, inter alia, Penry I); McKoy v. North Carolina, 494 U.S.

433, 443 (1990) (“As the Court stated in [Penry I]: . . . . “‘[T]he

Constitution limits a State’s ability to narrow a sentencer’s

discretion to consider relevant evidence that might cause it to

decline to impose the death sentence.’ Indeed, 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.”) (internal citation omitted); Saffle v. Parks, 494 U.S.

484, 491 (1990) (“In Penry, we held that resolution of a claim that

the Texas death penalty scheme prevented the jury from considering

and giving effect to certain types of mitigating evidence did not

involve the creation of a new rule under Teague. See Penry, 492 U.S.

at 315 []. To the extent that Penry’s claim was that the Texas

system prevented the jury from giving any mitigating effect to the

evidence of his mental retardation and abuse in childhood, the

decision that the claim did not require the creation of a new rule

is not surprising. Lockett and Eddings command that the State must

allow the jury to give effect to mitigating evidence in making the

sentencing decision; Penry’s contention was that Texas barred the

jury from so acting.”); Blystone v. Pennsylvania, 494 U.S. 299, 304-

71
05 (1990) (“Last Term, we elaborated on this principle, holding that

‘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.’ Penry v. Lynaugh, 492 U.S. 302, 328[]

(1989)”).

Through the 1990s, the Court continued to ratify the Penry I

requirement that the capital sentencing jury must able to consider

and give effect to the defendant’s relevant mitigating evidence in

selecting and imposing the appropriate sentence. See Payne v.

Tennessee, 501 U.S. 808, 822 (1991) (“We have held that a State

cannot preclude the sentencer from considering ‘any relevant

mitigating evidence’ that the defendant proffers in support of a

sentence less than death. . . . [V]irtually no limits are placed

on the relevant mitigating evidence a capital defendant may

introduce concerning his own circumstances . . . .”) (internal

citations omitted); Buchanan v. Angelone, 522 U.S. 269, 276 (1998)

(“In the selection phase, our cases have established that the

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

to consider, any constitutionally relevant mitigating evidence.

[citing Penry I, Eddings, and Lockett]. . . . 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.”).

In Penry v. Johnson, 532 U.S. 782 (2001) (“Penry II”), the

Supreme Court emphatically reaffirmed and applied the rule of Penry

72
I. The Court held that in Penry I it had “confirm[ed] that in a

capital case, ‘[t]he sentencer must . . . be able to consider and

give effect to [mitigating] evidence in imposing sentence,’ so that

‘‘the sentence imposed . . . reflec[ts] a reasoned moral response

to the defendant’s background, character, and crime.’’” Id. at 788

(quoting Penry I, 492 U.S. at 319) (alterations in original). The

Court in Penry II made clear that a Texas court violates the rule

of Penry I and the Eighth Amendment when it only allows the jury to

use relevant mitigating evidence to answer the special issues

without also allowing it to use such evidence to select the

appropriate life or death sentence. The Penry II Court explained

“the key under Penry I” as follows:

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

Penry II, 532 U.S. at 797.

73
 Applying the rule of Penry I again, the Court in Penry II held

that the pre-1991 Texas capital sentencing scheme was

unconstitutional as applied in Penry’s second capital sentencing for

essentially the same reasons it was constitutionally defective the

first time. The state trial court had attempted to cure the

constitutional deficiency with an ad hoc supplemental instruction,

but that instruction did not pass muster under the rule of Penry I

because it did not clearly inform the jurors that they were legally

empowered to consider and give effect to Penry’s mitigating evidence

in selecting and imposing the appropriate life or death sentence.

As the Penry II court stated, repeating the words of Penry I: “‘[A]

reasonable juror could well have believed that there was no vehicle

for expressing the view that Penry did not deserve to be sentenced

to death based upon his mitigating evidence.’” Id. at 804 (quoting

Penry I, 492 U.S. at 326).

In 2004, the Supreme Court twice reaffirmed the rule of Penry

I in Texas death penalty cases. In Tennard v. Dretke, 542 U.S. 274

(2004), and Smith v. Texas, 543 U.S. 37 (2004), the Court confirmed

Penry I’s vitality and restated the rules governing its application.

Tennard and Smith made plain that the inquiry that this court must

undertake in a Penry case is simply to consider whether the

defendant’s evidence is relevant (i.e., whether it tends to prove

or disprove any fact that the sentencer might deem mitigating), and,

if so, determine whether the special issues inhibit the jury’s

ability to consider and give effect to that evidence. Tennard and

74
Smith also clearly instructed both this court and the Texas courts

to refrain from placing restrictive glosses on the Court’s

jurisprudence and creating unwarranted impediments to Penry claims.

In Tennard, the Court first summarized the rules of federal law

it had recognized in Penry I, that: (1) the pre-1991 Texas capital

sentencing scheme “provided a constitutionally inadequate vehicle

for jurors to consider and give effect to the mitigating evidence

of mental retardation and childhood abuse....” Tennard, 542 U.S. at

276; (2) “‘it is not enough simply to allow the defendant to present

mitigating evidence to the sentencer...’” but rather “‘[t]he

sentencer must also be able to consider and give effect to that

evidence in imposing sentence,’” id. at 278 (quoting Penry I, 492

U.S. at 319); (3) the “give effect to” language of Penry I was “the

key” to that decision, id. at 278; (4) the same two special issues

that were presented to Tennard’s jury were “insufficient for the

jury in Penry’s case to consider and give effect to Penry’s evidence

of mental retardation and childhood abuse,” id.; (5) Penry’s mental

retardation evidence “‘‘had relevance to [his] moral culpability

beyond the scope of the [deliberateness] special verdict

questio[n]’’ because ‘[p]ersonal culpability is not solely a

function of a defendant’s capacity to act ‘deliberately,’’” id. at

278-79 (quoting Penry I, 492 U.S. at 322) (alterations in original);

(6) Penry’s mental retardation evidence “was relevant to the future

dangerousness special issue ‘only as an aggravating factor,’” id.

75
at 279 (quoting Penry I, 492 U.S. at 323); and (7) “the two special

issues simply failed to ‘provide a vehicle for the jury to give [the

evidence of childhood abuse] mitigating effect.’” Id. (quoting

Penry I, 492 U.S. at 322-24).

The Tennard court next called upon us to comply with the rules

of federal law it had established concerning the introduction and

use by the sentencing body of a defendant’s mitigating evidence in

a capital case. It adduced its holding in McKoy that in capital

cases the “meaning of relevance is no different in the context of

mitigating evidence . . . 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.” Tennard, 542 U.S. at 284 (quoting McKoy, 494 U.S. at

440) (internal quotation marks omitted). Then, the Court in Tennard

recognized the effects of its previous holdings regarding the

relevance standard in capital cases. “Once this low threshold for

relevance is met, the ‘Eighth Amendment requires that the jury be

able to consider and give effect to’ a capital defendant’s

mitigating evidence.” Id. at 285 (quoting Boyde, 494 U.S. at

377-78).

Further, the Court commented on and quoted from its opinion in

Skipper v. South Carolina, 476 U.S. 1 (1986), regarding its rules

about the introduction and use of relevant mitigating evidence. “We

have never denied that gravity has a place in the relevance

76
analysis, insofar as evidence of a trivial feature of the

defendant’s character or the circumstances of the crime is unlikely

to have any tendency to mitigate the defendant’s culpability.”

Tennard, 542 U.S. at 286 (citing Skipper, 476 U.S. at 7 n.2).

“However, to say that only those features and circumstances that a

panel of federal appellate judges deems to be ‘severe’ (let alone

‘uniquely severe’) could have such a tendency is incorrect. Rather,

the question is simply whether the evidence is of such a character

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

Id. at 287 (quoting Skipper, 476 U.S. at 5). The Tennard court also

held that the Fifth Circuit had erred in creating and applying its

own restrictive gloss—its “constitutional relevance” rule6—as a

threshold screening test to truncate its judicial review, rather

than applying the federal rules clearly established by the Court’s

decisions to the defendant’s mitigating evidence and Penry claim.

The Court disapproved of the “constitutional relevance” rule as

“ha[ving] no foundation in the decisions of this Court. Neither

Penry I nor its progeny screened mitigating evidence for

‘constitutional relevance’ before considering whether the jury

instructions comported with the Eighth Amendment.” Id. at 284.

6
Under the Fifth Circuit’s rule at that time, to be
constitutionally relevant, the defendant’s mitigating evidence had
to show (1) a uniquely severe permanent handicap with which the
defendant was burdened through no fault of his own, and (2) that
the defendant’s criminal act was attributable to that severe
condition.

77
 Finally, the Tennard court held that evidence of impaired

intellectual functioning is obviously evidence under the clearly

established relevance standard that “‘might serve ‘as a basis for

a sentence less than death,’’” id. at 287 (quoting Skipper, 476 U.S.

at 5), and that “[t]he relationship between the special issues and

Tennard’s low IQ evidence has the same essential features as the

relationship between the special issues and Penry’s mental

retardation evidence. Impaired intellectual functioning has

mitigating dimension beyond the impact it has on the individual’s

ability to act deliberately.” Id. at 288 (citing Penry I, 492 U.S.

at 322).

Justice O’Connor wrote the opinion for a six-member majority

in Tennard, and was joined by Justices Stevens, Kennedy, Souter,

Ginsburg and Breyer.

Shortly after Tennard, in Smith, the Supreme Court reiterated

that the standard relevance test governs the admission and use of

mitigating evidence in capital cases. The Smith court also

reaffirmed the rule “that the jury must be given an effective

vehicle with which to weigh mitigating evidence so long as the

defendant has met a low threshold for relevance, which is satisfied

by evidence which tends logically to prove or disprove some fact or

circumstance which a fact-finder could reasonably deem to have

mitigating value.” Smith, 543 U.S. at 44 (quoting Tennard, 542 U.S.

at 284-85) (internal quotation marks omitted).

78
 In Smith, the defendant had presented evidence that (1) he had

potentially organic learning disabilities and speech handicaps; (2)

he had a verbal IQ of 75, a full IQ of 78, and had been in special

education classes in school; (3) his behavior at school was often

exemplary, notwithstanding his low IQ and learning disabilities; (4)

his father was a drug addict and violent criminal who regularly

stole money from his family to support his drug addiction; and (5)

he was only 19 years old at the time of his crime. Id. at 41.

According to the Smith court, “[t]hat petitioner’s evidence was

relevant for mitigation purposes is plain under our precedents, even

those predating Tennard.” Id. at 45 (citing Penry I, 492 U.S. at

319-322, Payne, 501 U.S. at 822), Boyde, 494 U.S. at 377-78, and

Eddings, 455 U.S. at 114). Having found the evidence relevant, the

Court stated that “the Eighth Amendment required the trial court to

empower the jury with a vehicle capable of giving effect to that

evidence.” Id.; see also id. at 46 (noting that Penry II “held that

‘the key under Penry I is that the jury be able to ‘consider and

give effect to [a defendant’s mitigation] evidence in imposing

sentence’‘”) (quoting Penry II, 532 U.S. at 797).

Seven members of the Court joined the per curiam opinion in

Smith, including Chief Justice Rehnquist and Justices O’Connor,

Stevens, Kennedy, Souter, Ginsburg, and Breyer. Justice Scalia,

joined by Justice Thomas, dissented, saying only that he would

affirm the judgment of the Texas Court of Criminal Appeals and

79
adhering to his longstanding position in Walton v. Arizona, 497 U.S.

639, 673 (1990) (Scalia, J., concurring in part and concurring in

the judgment), of not “vot[ing] to uphold an Eighth Amendment claim

that the sentencer’s discretion has been unlawfully restricted.”

See Smith, 543 U.S. at 49 (Scalia, J., dissenting).

Finally, in 2006, the Court again confirmed the Penry I rule

requiring that a capital sentencing jury be able to consider and

give effect to relevant mitigating evidence in the selection of the

appropriate life or death sentence. See Oregon v. Guzek, 126 S. Ct.

1226, 1228 (2006) (“The Eighth Amendment insists upon ‘‘reliability

in the determination that death is the appropriate punishment in a

specific case.’’ The Eighth Amendment also insists that a

sentencing jury be able ‘to consider and give effect to mitigating

evidence’ about the defendant’s ‘character or record or the

circumstances of the offense.’”) (quoting Penry I, 492 U.S at

327-328) (internal citations omitted).

In sum, the Supreme Court has continued to reaffirm and apply

the Penry I rule in many cases since its inception in 1989, has

recognized its application to cases involving such relevant

mitigating evidence as impaired intellectual function, low IQ,

troubled and abusive childhood, participation in special education

classes, and mental retardation, and has developed numerous

auxiliary jurisprudential rules in support of the application of the

Penry I rule.

80
4. The Court’s Cases Demonstrate That Johnson Does Not
Change or Limit The Penry I Rule; It Merely Establishes
Auxiliary Principles Relating To Its Application.

Contrary to the argument by the State and my dissenting

colleagues, the Supreme Court in Johnson did not change or limit the

Penry I rule that the Eighth Amendment requires that a capital

sentencing jury must be able to give full consideration and effect

to all of a defendant’s relevant mitigating evidence in imposing the

appropriate life or death sentence. In Johnson, the Court merely

recognized three auxiliary principles for implementing the Penry I

rule: (1) Because of the unique manner in which youth mitigation

evidence aligns the inquiry into future dangerousness with an

assessment of culpability or deathworthiness, a defendant’s relevant

mitigating evidence of youth may be given full consideration and

effect by the jury’s answer to the future dangerousness special

issue; (2) In order to determine whether a Penry violation occurred,

a reviewing court must ask whether there is a reasonable likelihood

that the jury has applied the special issues in a way that prevents

it from giving full consideration and effect to any relevant

mitigating evidence; and (3) the state may shape and structure the

jury’s consideration so long as it does not preclude the jury from

giving effect to any relevant mitigating evidence, because, as the

Court subsequently explained, “[o]ur 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.” Buchanan v. Angelone, 522 U.S. 269, 276 (1998).

81
 That Johnson established these auxiliary principles and did not

change or limit the rule of Penry I itself was most clearly

demonstrated by the Court’s decision in Buchanan. In that case, the

Court held that the state trial court’s refusal to give instructions

on the concept of mitigation and on particular statutorily defined

mitigating factors did not violate the Eighth and Fourteenth

Amendments. Id. at 276-78. The Court explained that the defendant,

in arguing to the contrary, misunderstood the significant

distinction it had drawn between the two phases of the capital

sentencing process: the eligibility phase, in which the jury narrows

the class of defendants eligible for the death penalty, and the

selection phase, with which Buchanan was concerned, in which the

jury determines whether to impose a death sentence on an eligible

defendant. Id. at 275-76 (citing Tuilaepa v. California, 512 U.S.

967, 971-972 (1994)). In explaining the eligibility and selection

phases, the Court again ratified the Penry I rule and described the

principles that had been generated by Johnson in terms that indicate

the Court views them as supporting, rather than limiting, rules:

In the eligibility phase, the jury narrows the class of
defendants eligible for the death penalty, often through
consideration of aggravating circumstances. In the
selection phase, the jury determines whether to impose a
death sentence on an eligible defendant. . . .

. . . . It is in regard to the eligibility phase that we
have stressed the need for channeling and limiting the
jury’s discretion to ensure that the death penalty is a
proportionate punishment and therefore not arbitrary or
capricious in its imposition. In contrast, in the
selection phase, we have emphasized the need for a broad
inquiry into all relevant mitigating evidence to allow an

82
 individualized determination. Tuilaepa, supra, at
971-973, 114 S.Ct., at 2634-2636; Romano v. Oklahoma, 512
U.S. 1, 6-7, 114 S.Ct. 2004, 2008-2009, 129 L.Ed.2d 1
(1994); McCleskey v. Kemp, 481 U.S. 279, 304-306, 107
S.Ct. 1756, 1773-1775, 95 L.Ed.2d 262 (1987); Stephens,
supra, at 878-879, 103 S.Ct., at 2743-2744. . . .

In the selection phase, our cases have established that
the sentencer may not be precluded from considering, and
may not refuse to consider, any constitutionally relevant
mitigating evidence. Penry v. Lynaugh, 492 U.S. 302,
317-318, 109 S.Ct. 2934, 2946-2947, 106 L.Ed.2d 256
(1989); Eddings v. Oklahoma, 455 U.S. 104, 113-114, 102
S.Ct. 869, 876-877, 71 L.Ed.2d 1 (1982); Lockett v. Ohio,
438 U.S. 586, 604, 98 S.Ct. 2954, 2964-2965, 57 L.Ed.2d
973 (1978). However, the state may shape and structure
the jury’s consideration of mitigation so long as it does
not preclude the jury from giving effect to any relevant
mitigating evidence. Johnson v. Texas, 509 U.S. 350, 362,
113 S.Ct. 2658, 2666, 125 L.Ed.2d 290 (1993); Penry,
supra, at 326, 109 S.Ct., at 2951; Franklin v. Lynaugh,
487 U.S. 164, 181, 108 S.Ct. 2320, 2331, 101 L.Ed.2d 155
(1988). 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. at 275-76 (emphasis added).

Thus, as the Buchanan Court read Penry I together with Johnson,

Tuilaepa, Romano and other cases, the rule of Penry I is not limited

by Johnson at all. Instead, the Penry I holding that the Eighth

Amendment requires that a capital sentencing jury be able to

consider fully and give effect to the defendant’s relevant

mitigating evidence by selecting the appropriate sentence stands

unlimited and unscathed by Johnson. Johnson, as read by Buchanan,

merely establishes precedent for application of the Boyde test and

adds that a State may shape and structure mitigation consideration

83
so long as it does not prevent the sentencer from giving effect to

the mitigating evidence.

Moreover, as pointed out earlier, since Johnson was decided,

the Court in Penry II, Tennard, and Smith repeatedly reaffirmed the

rule and holding of Penry I as Justice O’Connor described it, first,

in Penry I itself, next, in her dissent in Johnson, again in the

six-member majority of Penry II, and finally in Tennard. In her

Johnson dissent, Justice O’Connor stated:

[In Penry I],we plainly held that the Texas special
issues violated the Eighth Amendment to the extent they
prevented the jury from giving full consideration and
effect to a defendant’s relevant mitigating evidence.

Penry was in no way limited to evidence that is only
aggravating under the “future dangerousness” issue. We
stated there that “Eddings makes 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.” That we meant “full effect” is
evident from the remainder of our discussion. We first
determined that Penry’s evidence of mental retardation
and his abused childhood was relevant to the question
whether he acted deliberately under the first special
issue. But having some relevance to an issue was not
sufficient, and the problem was not, as the Court today
suggests, simply that no jury instruction defined the
term “deliberately.” Instead, we noted that the jury must
be able to give effect to the evidence as it related to
Penry’s “[p]ersonal culpability,” which “is not solely a
function of a defendant’s capacity to act
‘deliberately.’” The jury could not give full effect to
Penry’s evidence under the first special issue 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.” That is, the evidence had relevance beyond
the scope of the first issue.

84
Johnson, 509 U.S. at 385-86 (O’Connor, J., dissenting) (alteration

in original) (internal citations omitted).

Significantly, too, Justice Kennedy, Johnson’s author, joined

the six member majorities in Penry II and Tennard, and the seven

member majority in Smith. Further, Tennard and Smith made clear

that the rule of Penry I applies to all categories of mitigating

evidence that are relevant to the assessment of a defendant’s

diminished culpability or that might cause a jury through its

reasoned moral response to select life imprisonment rather than a

death sentence for the defendant. These decisions, along with

Buchanan, have resoundingly ratified and continued to uphold Justice

O’Connor’s view as expressed in Penry I that the Eighth Amendment

requires that a capital sentencing jury be able to fully consider

defendant’s relevant mitigating evidence by using that evidence to

assess his moral culpability and to give full effect to that

evidence by selecting the appropriate life or death sentence for him

in that case.

Also, as the Court has made clear in Buchanan, Tennard, Smith,

and other cases, the State’s ability to shape and structure the

capital sentencer’s consideration of mitigation evidence may not be

used to “preclude the jury from giving effect to any relevant

mitigating evidence” by selecting the appropriate sentence for the

offender in each case. Buchanan, 522 U.S. at 276. The Court

emphasized its continued disapproval of the use of the Texas special

issues to in any way “constrain” the jury’s ability to give effect

85
to mitigation evidence by selecting the appropriate sentence. In

comparing the Virginia sentencing system involved in Buchanan with

the Texas system used in Penry I, the Court stated:

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, the instructions here did not constrain the
manner in which the jury was able to give effect to
mitigation.

Id. at 277 (internal citation and footnote omitted).

Furthermore, as described earlier, the Court in Tennard and

Smith emphatically held that state and inferior federal courts may

not through judicial glosses or otherwise create ad hoc or common

law type threshold or screening rules that cut short appellate

review of death penalty cases and thus indirectly have the effect

of approving and encouraging constraints upon the manner in which

the capital sentencing juries are able to give full effect to

relevant mitigating evidence in the selection of the appropriate

death or life imprisonment sentence in individual cases.

The reaffirmation of Penry I’s rule that the capital sentencing

jury be able to give both full consideration and full effect to

relevant mitigating evidence, moreover, necessitates realigning the

Boyde test analogue for application to the present case in which,

allegedly, the capital sentencer was incapable of either

appropriately considering or giving effect to the defendant’s

86
mitigating evidence for the purposes of individualized sentencing.

Due to the marked differences between the Texas sentencing system

in the present case and the California system in Boyde, the Boyde

rule cannot be applied in precisely the same way to the alleged dual

error in the present case.

In Boyde, although the jury was instructed that it must impose

the death penalty if it found the aggravating circumstances to

outweigh the mitigating circumstances and a life imprisonment

sentence if it found vice versa, the jurors retained a great deal

of discretion in that they could decide what weight to assign the

aggravating and mitigating factors and they were fully enabled to

make the ultimate choice of whether to impose or withhold the death

penalty. Thus, the California system in Boyde was markedly

different from the pre-1991 Texas system under which the jury was

not legally authorized to choose between life and death sentences

in any case. In Boyde, the defendant argued that although the jury

retained significant sentencing discretion, his constitutional

rights were violated because the jury was given an instruction that

could have misled it into thinking it was not free to consider his

mitigating evidence of background and character in deciding whether

to impose the death penalty. Near the beginning of the Supreme Court

opinion, Chief Justice Rehnquist reaffirmed the rule of Penry I:

“The Eighth Amendment requires that the jury be able to consider and

give effect to all relevant mitigating evidence offered by

petitioner.” Boyde, 494 U.S. at 378. However, after that point the

87
Boyde opinion does not refer to the “give effect” part of the rule

as it was not genuinely at issue, the only real question being

whether the allegedly ambiguous jury instruction had prevented the

jury from “be[ing] able to consider . . . all relevant mitigating

evidence.” Id. The Court decided that the rule to be applied to

such an alleged ambiguous jury instruction would be the “reasonable

likelihood” test and, upon applying that test, concluded that there

was no reasonable likelihood that Boyde’s jury had been precluded

from considering the relevant background and character mitigation

evidence. As Chief Justice Rehnquist explained:

In this case we are presented with a single jury
instruction. The instruction is not concededly
erroneous, nor found so by a court, as was the case in
Stromberg v. Cailfornia, 283 U.S. 359, 51 S.Ct. 532, 75
L.Ed. 1117 (1931). The claim is that the instruction is
ambiguous and therefore subject to an erroneous
interpretation. We think the proper inquiry in such a
case 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. 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. This “reasonable likelihood” standard, we
think, better accommodates the concerns of finality and
accuracy than does a standard which makes the inquiry
dependent on how a single hypothetical “reasonable” juror
could or might have interpreted the instruction.

Id. at 380.

Because the capital sentencing jury in the present case, like the

jury in Penry I, was not free or able to choose a life imprisonment

sentence for Nelson, the alleged constitutional deficiency here

88
affected the jury’s ability to both “consider and give effect” to

Nelson’s relevant mitigating evidence; it is not merely an alleged

ambiguous jury instruction that could have affected only their

understanding of the types of mitigating evidence that they could

consider. Indeed, as I explain in the last section of this opinion,

the constitutional deficiency here is a structural defect which

affected the entire capital sentencing proceeding and cannot be

analyzed for harmless error, i.e., the alleged binary defect is (1)

the total absence of the jury’s ability to consider the mitigating

evidence for purposes of assessing Nelson’s moral culpability or

deathworthiness; and (2) the total absence of the jury’s ability to

give the evidence effect by selecting the sentence it deems

appropriate based on that assessment. Accordingly, if the Boyde

test is to be applied by analogy in the present case, it must be

adjusted to properly and completely fit both elements of the alleged

constitutional violation here. Because, unlike the situation in

Boyde, there is a serious question here whether the jury was

precluded from giving effect to Nelson’s mitigating evidence, the

proper inquiry here should be whether there is a reasonable

likelihood that the jury was prevented from considering Nelson’s

mitigation evidence to assess his culpability or giving effect to

that evidence by selecting the appropriate sentence.

Because of the unique nature of the youth mitigation evidence

at issue in Johnson, the Court there apparently considered that only

an alleged failure in the jury’s ability to consider the evidence

89
was at issue. The Court in Johnson must have concluded that the

jury was fully capable of giving effect to the mitigating evidence

by selecting the sentence if the jury instruction had not precluded

them from giving it full consideration. Thus, the situations posing

only unitary errors in both Boyde and Johnson were quite similar in

this respect despite other differences in the two sentencing

systems. Consequently, there was no need for the Court to consider

further reshaping the Boyde test analogue that it derived from its

Boyde decision. For all of these reasons, the Johnson Court’s use

of a Boyde test analogue capable of testing only for a preclusion

of the jury’s ability to consider the evidence should not prevent

courts from reshaping the analogue test to make it suitable for

detecting a preclusion of both the jury’s ability to consider and

to give effect to relevant mitigating evidence.

Considering all of the foregoing reasons, I conclude that the

Court’s decisions subsequent to Johnson demonstrate that neither it

nor any other decision has been read as limiting or changing the

constitutional requirements and principles established in Penry I.

5. Texas’ Pre-1991 Capital Sentencing Scheme Provided a
Constitutionally Inadequate Vehicle for Jurors to Consider and
Give Effect to the Mitigating Evidence that Nelson Presented.

As I explained above, by the time Nelson’s conviction became

final in 1994, the relevant Supreme Court cases had clearly

established that in order to constitutionally impose and carry out

the death penalty, a capital sentencer must be enabled: (1) to make

an individualized assessment of each defendant’s moral culpability

90
and deathworthiness and (2) to give full effect to that evidence by

selecting between either life imprisonment or death as the

appropriate sentence.

In this case, Nelson presented evidence during the punishment

phase of his trial that (1) he was rejected by his mother; (2) he

abused drugs and alcohol; (3) he had troubled relationships with his

brother and with women; (4) he had fathered a child, with whom he

was not allowed to have a relationship; and (5) he suffered from

borderline personality disorder. The state courts held that all of

Nelson’s evidence could be adequately considered within the

“deliberateness” and “future dangerousness” special issues.

It is abundantly clear that there is more than a reasonable

likelihood that the jury was not permitted to fully consider and

give effect to Nelson’s mitigating evidence, as the “deliberateness”

and “future dangerousness” special issues did not permit the jury

to consider how that evidence affected their assessment of Nelson’s

moral culpability or to agree upon whether the death penalty or life

imprisonment was the appropriate sentence in his case. There can

be no question that Nelson’s mitigating evidence, particularly his

evidence of a frequently disorienting borderline personality

disorder, a medically recognized mental illness,7 implicates his

7
Nelson’s expert psychiatric witness, Dr. Hickman, testified
that his borderline personality disorder caused him to experience
sudden, violent outbursts of emotion that clouded his judgment. See
See Nelson v. Dretke, 442 F.3d 282, 310-11 (5th Cir. 2006) (Dennis,
J., concurring in the judgment) (describing testimony about
Nelson’s psychological condition in detail). The fourth

91
deathworthiness and his moral culpability. Nelson’s troubled

background and mental disorder make him less morally culpable

independently of the issues of whether he acted deliberately or

would be a future danger. But “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.” Nelson, 442 F.3d at 306 (Dennis, J.,

concurring in the judgment). Accordingly, for the reasons set forth

in my concurring panel opinion, I agree with the en banc majority

that a Penry violation occurred in this case and that the state

courts unreasonably applied clearly established federal law in

denying Nelson’s claim.

6. The Restrictive Glosses Applied At The Panel Level In This
Case And Others Have No Basis In The Supreme Court’s
Decisions.

edition of the Diagnostic and Statistical Manual of Mental
Disorders defines Borderline Personality Disorder as “[a] pervasive
pattern of instability of interpersonal relationships, self-image,
and affects, and marked impulsivity by early adulthood and present
in a variety of contexts,” marked by five or more of the following:
(1) “frantic efforts to avoid real or imagined abandonment”; (2) “a
pattern of unstable and intense interpersonal relationships
characterized by alternating between extremes of idealization and
devaluation”; (3) “identity disturbance: markedly and persistently
unstable self-image or sense of self”; (4) “impulsivity in at least
two areas that are potentially self-damaging”; (5) “recurrent
suicidal behavior, gestures, or threats, or self-mutilating
behavior”; (6) “affective instability due to a marked reactivity of
mood”; (7) “chronic feelings of emptiness”; (8) “inappropriate,
intense anger or difficulty controlling anger”; and (9) “transient,
stress-related paranoid ideation or severe dissociative symptoms.”
American Psychiatric Association, Diagnostic and Statistical Manual
of Mental Disorders 709 (4th ed., text. rev., 2000).

92
 As the Supreme Court made unmistakably clear in Tennard, this

court is not permitted to artificially or ingeniously narrow Penry

I by imposing screening tests or placing restrictive glosses on the

Supreme Court’s jurisprudence. Tennard, 542 U.S. at 283-84; see

also Smith, 543 U.S. at 43-45. In Tennard, the Court admonished

this circuit that its “constitutional relevance,” “uniquely severe

permanent handicap,” and “nexus” tests were restrictive glosses that

had “no foundation in the decisions” of the Supreme Court. Tennard,

542 U.S. at 284, 289. As Tennard instructed, we are not permitted

to alter or elaborate the tests outlined by the Supreme Court so as

to “fail to reach the heart of [a defendant’s] Penry claims.” Id.

at 286.

In holding that Nelson’s mitigating evidence could be

considered within the context of the special issues, the state court

and Chief Judge Jones’ panel opinion in this case erroneously relied

on pre-Tennard Fifth Circuit precedent that, like the defunct

“constitutional relevance” test, are unsupported by the Supreme

Court’s cases. The state court and Chief Judge Jones’ panel opinion

used such cases to find that both Nelson’s evidence concerning his

background and troubled relationships and his evidence of voluntary

intoxication could be sufficiently considered within the scope of

the special issues. See Nelson, 442 F.3d at 285-86. In light of

the clearly established law described above, however, it was error

to rely on prior Fifth Circuit threshold and screening rules in

those cases.

93
 Even more troubling is Chief Judge Jones’ panel opinion’s

resort to yet another of this circuit’s restrictive glosses on the

Supreme Court’s Penry jurisprudence, in the form of the “treatable

mental disorder” test, under which evidence of a mental disorder

that is only theoretically treatable is not considered Penry

evidence. Nelson, 442 F.3d at 287 (citing Coble v. Dretke, 417 F.3d

508 (5th Cir. 2005)). Again, this test adds a gloss that has no

basis in the Supreme Court’s decisions. This circuit’s rule that

any theoretically non-permanent mental illness can be given the

requisite effect through the Texas special issues is simply another

contrivance to avoid the requirements of the Supreme Court’s

individualized sentencing jurisprudence, and I agree with the

majority that it should not be applied.8

In addition, I agree with the majority’s decision to reject the

wholly-unfounded “double-edged” evidence rule. This court has

sometimes used Johnson to deny Penry claims by stating that Johnson

adopted a so-called “double-edged” evidence rule, under which

mitigating evidence does not trigger Penry scrutiny unless a juror

considering the evidence could give it only aggravating, and not

mitigating, effect under the special issues. See, e.g., Cole v.

Dretke, 418 F.3d 494, 505-08 & n.54 (5th Cir. 2005), cert. granted

sub nom., Abdul-Kabir v. Quarterman, 127 S. Ct. 432 (2006). As the

8
The Supreme Court recently granted certiorari in a case
involving this rule. See Brewer v. Dretke, 442 F.3d 273, 280 (5th
Cir.) (stating that non-permanent mental illness does not give rise
to a Penry claim), cert. granted, 127 S. Ct. 433 (2006).

94
majority points out, although the Penry I court remarked that one

of the problems with the application of the special issues to

Penry’s case was that a juror could only find Penry’s evidence of

mental retardation to be an aggravating factor, see Penry I, 492

U.S. at 324, that observation was not the basis for the decision and

Penry I is not therefore limited to such “double-edged” evidence.

Moreover, as I explained in my dissent from the denial of rehearing

en banc in Cole, nothing in the Court’s decision in Johnson or

subsequent cases indicates that the Johnson court adopted such a

rule. See Cole, 443 F.3d at 450-51 (Dennis, J., dissenting).

7. The State’s Failure To Enable Its Capital Sentencing Jury
To Give Full Consideration And Effect To Nelson’s
Relevant Mitigating Evidence Cannot Be Harmless Error.

i. The State Waived Its Harmless Error Argument.

The state did not argue that any Penry error in this case could

be harmless until its en banc brief in this court. Ordinarily, the

state bears the burden of showing that a preserved error was

harmless. See United States v. Dominguez Benitez, 542 U.S. 74, 81

n.7 (2004). In addition, the state can waive harmless error review

by failing to raise the issue in a timely and unequivocal manner in

the district court. See Sanders v. Cotton, 398 F.3d 572, 582 (7th

Cir. 2005); Lam v. Kelchner, 304 F.3d 256, 269-70 (3d Cir. 2002);

2 RANDY HERTZ & JAMES S. LIEBMAN, FEDERAL HABEAS CORPUS PRACTICE & PROCEDURE §

31.2, at 1512 & n.1 (5th ed. 2005); see also Saldano v. Roach, 363

F.3d 545, 554-55 (5th Cir. 2004). Although a court retains the

discretion to consider the harmless error issue even when it has

95
been waived, it should generally do so only if the error’s

harmlessness is clear from even a cursory review of the record and

reversal for further proceedings would be nothing more than a waste

of resources. See Sanders, 398 F.3d at 582; United States v.

Giovannetti, 928 F.2d 225, 226-27 (7th Cir. 1991). Whether the

court should overlook the state’s waiver of harmless error in any

particular case depends on “the length and complexity of the record,

whether the harmlessness of the error or errors found is certain or

debatable, and whether a reversal will result in protracted, costly,

and ultimately futile proceedings in the district court.”

Giovannetti, 928 F.2d at 227.

Although I did not consider the effect of the state’s failure

to raise harmless error in my concurring panel opinion, I am now

convinced that the state waived any argument concerning harmless

error by failing to raise it in the district court. Moreover,

applying the factors set out in Giovannetti, it is clear that this

is not a case in which we should exercise our discretion to overlook

that waiver. The record in Nelson’s case is substantial and the

issues are complex; it is certainly debatable whether the trial

court’s error is, or could ever be, harmless (indeed, I conclude

below that such an error is reversible per se); and reversing

Nelson’s death sentence and ordering a new sentencing proceeding at

which the jury is permitted to fully consider Nelson’s mitigating

evidence in determining the appropriate sentence cannot be

considered a futile act. Accordingly, this court can properly

96
conclude that the state has waived harmless error review and that

this is not an appropriate case in which this court should disregard

the state’s waiver.

ii. A Penry Error Is A Structural Defect That Is Not
Susceptible To Harmless Error Review.

Under principles of law clearly established by the Supreme

Court’s decisions, the constitutional violation in this case was

a “structural defect” that cannot be analyzed as harmless “trial

error.” This is because the violation was not a discrete error that

a reviewing court can determine from the record had no substantial

and injurious effect or influence on the jury’s determination of the

sentence. Rather, the violation was the State’s failure in this case

to enable its capital sentencing jury to give full effect to

Nelson’s relevant mitigating evidence in determining the sentence.

The history and purpose of harmless error review demonstrates

why it is inappropriate in this case. The dichotomy between errors

of constitutional dimension that may be found to be harmless and

those that may not began with Chapman v. California, 386 U.S. 18

(1967). In Chapman, the Supreme Court recognized that “there are

some constitutional rights so basic to a fair trial that their

infraction can never be treated as harmless error....” Id. at 23.

The Court pointed to the rule against coerced confessions,9 the

9
Id. at 23 n.8 (citing Payne v. Arkansas, 356 U.S. 560
(1958)).

97
right to counsel,10 the right to an impartial judge,11 and, in a

later case, the rule against double jeopardy,12 as belonging to the

list of constitutional rights so important that their violation

requires automatic reversal. See 3B CHARLES ALAN WRIGHT ET AL., FEDERAL

PRACTICE & PROCEDURE § 855 (3d ed. 2004). For errors that could be

treated as harmless, Chapman established that the prosecution has

the burden of showing that the error was harmless, and reversal is

required unless the court is “able to declare a belief that it was

harmless beyond a reasonable doubt.” Chapman, 386 U.S. at 24. The

Chapman court warned against “‘overemphasis’ on the notion that

error is harmless if there is overwhelming evidence of guilt.” 3B

WRIGHT ET AL., supra, at § 855. Later, in Bumper v. North Carolina,

391 U.S. 543, 550 n.16 (1968), the Court struck a similar chord,

emphasizing that “it is not the function of this Court to determine

innocence or guilt, much less to apply our own subjective notions

of justice. Our duty is to uphold the Constitution of the United

States.”

Some twenty-four years after Chapman, building on the dichotomy

it recognized, the Court in Arizona v. Fulminante, 499 U.S. 279

(1991), developed a theory for distinguishing between constitutional

“trial errors,” which can be harmless, and constitutional

10
Id. (citing Gideon v. Wainwright, 372 U.S. 335 (1963)).
11
Id. (citing Tumey v. Ohio, 273 U.S. 510 (1927)).
12
Price v. Georgia, 398 U.S. 323 (1970).

98
“structural defects,” which cannot. The Court explained that trial

error “occur[s] during the presentation of the case to the jury” and

is amenable to harmless error analysis because it “may . . . be

quantitatively assessed in the context of other evidence presented

in order to determine whether its admission was harmless beyond a

reasonable doubt.” Id. at 307-08. At the other end of the spectrum

of constitutional errors lie “structural defects in the constitution

of the trial mechanism, which defy analysis by ‘harmless-error’

standards. The entire conduct of the trial from beginning to end

is obviously affected by [structural defects such as] the absence

of counsel for a criminal defendant [and] the presence on the bench

of a judge who is not impartial.” Id. at 309-10. The existence of

a structural defect “affect[s] the framework within which the trial

proceeds, rather than [being] simply an error in the trial process

itself.” Id. at 310. A structural defect “transcends the criminal

process” because “‘[w]ithout these basic protections, a criminal

trial cannot reliably serve its function . . . and no criminal

punishment may be regarded as fundamentally fair.’” Id. at 310, 311

(quoting Rose v. Clark, 478 U.S. 570, 577-78 (1986)).

In Fulminante, the Court also recognized that since Chapman it

had added to the category of structural constitutional errors not

subject to harmless error the following: “unlawful exclusion of

members of the defendant’s race from a grand jury;”13 “the right to

13
Id. at 310 (citing Vasquez v. Hillery, 474 U.S. 254 (1986)).

99
self-representation at trial;”14 and “the right to public trial.”15

In Fulminante itself, the Court held that the admission of a coerced

confession is a trial error subject to harmless error analysis,

reversing its prior classification in Chapman of that kind of error

as a structural defect. Ultimately, however, a majority of the

Fulminante court held that the error was not harmless beyond a

reasonable doubt in that particular case and affirmed the Arizona

Supreme Court’s decision to grant Fulminante a new trial. Id. at

297-302.

Two years later, the Supreme Court in Sullivan v. Louisiana,

508 U.S. 275 (1993), a case on direct review, held that a

constitutionally deficient reasonable doubt jury instruction, which

carries with it “consequences that are necessarily unquantifiable

and indeterminate, unquestionably qualifies as a structural error.”

Id. at 282 (internal quotation marks omitted). As Justice Scalia

explained, the harmless error question Chapman poses for reviewing

courts is

not what effect the constitutional error might generally
be expected to have upon a reasonable jury, but rather
what effect it had upon the guilty verdict in the case at

14
Id. (citing McKaskle v. Wiggins, 465 U.S. 168, 177-78 n.8
(1984)).
15
Id. (citing Waller v. Georgia, 467 U.S. 39, 49 n.9 (1984)).
In addition to these categories, commentators have pointed to a
number of rights that have been designated as “structural” by the
Court and various lower courts, including the the right to a speedy
trial, a public trial, and the right to an appeal. See 2 RANDY HERTZ
& JAMES S. LIEBMAN, FEDERAL HABEAS CORPUS PRACTICE & PROCEDURE § 31.3, at
1521-30 (5th ed. 2005).

100
 hand. Harmless-error review looks . . . to the basis on
which the jury actually rested its verdict. The inquiry,
in other words, is not whether, in a trial that occurred
without the error, a guilty verdict would surely have
been rendered, but whether the guilty verdict actually
rendered in this trial was surely unattributable to the
error. That must be so, because to hypothesize a guilty
verdict that was never in fact rendered—no matter how
inescapable the findings to support that verdict might
be—would violate the jury-trial guarantee.

Id. at 279 (internal citations and quotation marks omitted). And,

as he elaborated,

Since, for the reasons [just] described . . . , there has
been no jury verdict within the meaning of the Sixth
Amendment, the entire premise of Chapman review is simply
absent. There being no jury verdict of
guilty-beyond-a-reasonable-doubt, the question whether
the same verdict of guilty-beyond-a-reasonable-doubt
would have been rendered absent the constitutional error
is utterly meaningless. There is no object, so to speak,
upon which harmless-error scrutiny can operate. The most
an appellate court can conclude is that a jury would
surely have found petitioner guilty beyond a reasonable
doubt—not that the jury’s actual finding of guilty beyond
a reasonable doubt would surely not have been different
absent the constitutional error. That is not enough.
The Sixth Amendment requires more than appellate
speculation about a hypothetical jury’s action, or else
directed verdicts for the State would be sustainable on
appeal; it requires an actual jury finding of guilty.

Id. at 280 (internal citations omitted).

Also in 1993, the Supreme Court in Brecht changed the harmless

error rule that applies to habeas corpus cases, holding that, on

collateral review of state court decisions, federal courts should

apply the standard of the Kotteakos v. United States, 328 U.S. 750

(1946), which asks whether the error had a substantial and injurious

effect on the verdict, rather than the Chapman harmless beyond a

101
reasonable doubt standard, to decide whether a constitutional trial

error was harmless. But the Brecht court did not alter, and in fact

reaffirmed as longstanding, the rule that a constitutional

structural defect is reversible per se and not subject to harmless

error analysis. Citing Fulminante, the Court reiterated:

Trial error “occur[s] during the presentation of the case
to the jury,” and is amenable to harmless-error analysis
because it “may . . . be quantitatively assessed in the
context of other evidence presented in order to determine
[the effect it had on the trial].” At the other end of
the spectrum of constitutional errors lie “structural
defects in the constitution of the trial mechanism, which
defy analysis by ‘harmless-error’ standards.” The
existence of such defects-deprivation of the right to
counsel, for example—requires automatic reversal of the
conviction because they infect the entire trial process.
Since our landmark decision in Chapman v. California, we
have applied the harmless-beyond-a-reasonable-doubt
standard in reviewing claims of constitutional error of
the trial type.

Id. at 629-30 (alterations in original) (internal citations

omitted).

Accordingly, in habeas corpus proceedings, even after Brecht,

“structural” constitutional defects, as opposed to constitutional

“trial errors,” are always considered “prejudicial” and reversible

per se. Reviewing courts may not subject them to harmless error

analysis or declare them to be harmless under any standard.

Applying the foregoing principles, I conclude that the

constitutional violation that occurred when the pre-1991 Texas

capital sentencing system was applied to a case in which a defendant

had introduced mitigating evidence that reasonably may have caused

a sentencer to impose a sentence of less than death, the violation

102
was caused not by a “trial error” but by a “structural defect” that

is not subject to harmless error analysis.

More specifically, the defect plainly is not a “trial error,”

which “occur[s] during the presentation of the case to the jury,”

and is amenable to harmless-error analysis. Fulminante, 499 U.S. at

307. As Chief Justice Rehnquist explained in Fulminante, a “trial

error” is one which “may . . . be quantitatively assessed in the

context of other evidence presented in order to determine whether

its admission was harmless beyond a reasonable doubt.” Fulminante,

499 U.S. at 307-08. Under his analysis, a Penry I violation is not

a “trial error” because it is impossible for a reviewing court to

“quantitatively” assess what affect the mitigating evidence would

have had on the sentencing jury if it had been granted the

discretion to choose between a life or a death sentence for Penry.

Instead, the defect is a “structural defect[] in the constitution

of the trial mechanism, which def[ies] analysis by ‘harmless-error’

standards. The entire conduct of the [sentencing] from beginning to

end is obviously affected by” a structural defect in the sentencing

framework. Id. at 309-10. Consequently, Penry I held that the pre-

1991 Texas capital sentencing scheme was unconstitutional as applied

to that case and made clear that in a new capital sentencing

proceeding the structural defect must be repaired so as to enable

the jury to fully consider Penry’s mitigation evidence and to

decline to impose the death penalty if it decided that sentence to

be inappropriate in Penry’s case.

103
 That the constitutional violation in Penry I and this case

resulted from a “structural defect” that is not susceptible to

harmless error analysis is even more clearly shown by applying

Justice Scalia’s first analysis in Sullivan. According to Sullivan,

as a court reviewing for harmless error, we are instructed to

consider “not what effect the constitutional error might generally

be expected to have upon a reasonable jury, but rather what effect

it had upon the . . . verdict in the case at hand. . . . The

inquiry, in other words, is not whether, in a [sentencing

proceeding] that occurred without the error, a [death penalty] would

surely have been [imposed], but whether the [death penalty actually

imposed] in this [capital sentencing proceeding] was surely

unattributable to the error.” Sullivan, 508 U.S. at 279. Once the

proper function of harmless error review is understood, “the illogic

of harmless-error review in the present case becomes evident.” Id.

at 280. Since there has been no jury consideration of Nelson’s

mitigating evidence for purposes of determining whether the death

penalty is necessary for just retribution in his case, and no jury

decision that the death penalty is indeed appropriate in his case,

“the entire premise of [harmless error] review is simply absent.”

Id. Because the jury could not fully consider the mitigating

evidence and there was no jury decision upon whether the death

penalty is appropriate here, the question of whether the same

decision to impose the death penalty “would have been rendered

absent the constitutional error is utterly meaningless.” Id. “The

104
most [we] can conclude is that a jury would surely have found” that

Nelson deserves the death penalty—not that the actual imposition of

the death penalty “would surely not have been different absent the

constitutional error.” Id. Such a determination on our part in the

present case would be nothing more than appellate speculation about

a hypothetical jury’s action, not a meaningful appellate harmless

error analysis of Nelson’s jury’s actual determination to impose the

death penalty.16

Having reached the foregoing conclusions after additional study

and a better understanding of the applicable legal principles, I

must acknowledge and correct the errors in the premise and the

result of my separate panel opinion in this case.

My initial error resulted from my faulty appreciation of the

correlation between (1) the Supreme Court’s statement in Johnson

that “[t]he standard against which we assess whether jury

instructions satisfy the rule of Lockett and Eddings was set forth

in Boyde v. California.” Johnson, 509 U.S. at 367; (2) the Court’s

application by analogy of the Boyde test in Johnson to determine

16
I am aware, of course, that Justice Scalia’s Sullivan
analysis is based on the Sixth Amendment, while a Penry violation
is based upon an Eighth Amendment defect in the framework of a
capital sentencing proceeding. Nevertheless, I believe that the
teachings of Sullivan are helpful and directly applicable to the
question of whether a Penry error is a structural defect not
subject to harmless error analysis. As Sullivan acknowledges, its
analysis is also fully consistent with Chief Justice Rehnquist’s
more general analysis for determining whether a constitutional
violation is a structural defect or a trial error in Fulminante,
which is not tied to the Sixth Amendment or to any other specific
constitutional amendment. See Sullivan, 508 U.S. at 281-82.

105
whether there was a Penry I constitutional violation; and (3) the

Court’s holding in Calderon v. Coleman, 525 U.S. 141 (1998), that

once the court of appeals had determined that the state trial

court’s ambiguous jury instruction was a constitutional trial error

under the Boyde test, it was bound to apply the harmless error

analysis mandated by Brecht and find the error harmful before

issuing a writ of habeas corpus. From these decisions, I

incorrectly concluded that every Penry I constitutional violation

detected by application of the Boyde test will be a “trial error”

susceptible to harmless error analysis. This does not follow,

however; on the contrary, it seems probable that most Penry I

violations will be structural defects that are reversible per se,

like the defect in the present case. By its nature a Penry I

violation consists of the absence of the jury’s constitutionally

required capability to consider and give effect to relevant

mitigating evidence. Therefore, I conclude that after detecting a

constitutional error by application of the Boyde test, it is

necessary for us to analyze the particular constitutional deficiency

according to the Supreme Court’s jurisprudential principles to

determine if it is a structural defect which is reversible per se

or a trial error that is susceptible to harmless error analysis

under Brecht.

Second, having erroneously concluded that a harmless error

analysis could be performed on the structural defect in this case,

I unintentionally compounded my mistake by attempting to apply the

106
Brecht test “to the hypothesizing of events that never in fact

occurred. Such an enterprise is not factfinding, but closer to

divination.” Dominguez Benitez, 542 U.S. at 86 (2004) (Scalia, J.,

concurring). In other words, I could not examine the jury’s

decision choosing the sentence in this case, because the jury here

never made such a decision. Instead, I erroneously performed what

I thought was a proper harmless error examination but which in

reality was an improper hypothesization of what the jury would have

done had it been enabled to give effect to the mitigating evidence

by selecting the sentence.

For these reasons, the deprivation of the defendant’s right to

a sentencing jury that was able to consider and give effect to all

of his relevant mitigating evidence by selecting the appropriate

sentence for him in the particular case, with consequences that are

necessarily unquantifiable and indeterminate, unquestionably

qualifies as “structural defect”, not a “trial error.”

Conclusion

For these reasons, I concur in the judgment of the majority

opinion.

107
EDITH H. JONES, Chief Judge, with whom JOLLY, SMITH, BARKSDALE,

GARZA, and CLEMENT, Circuit Judges, join dissenting from the

majority opinion:

I. BACKGROUND

This court voted to rehear Nelson’s case en banc because

we are divided over how to interpret recent Supreme Court cases —

Penry II, Tennard, and Smith — concerning Texas’s pre-1991 death

penalty statute. Three years ago, we reheard the Robertson case

en banc because we were divided over interpretation of the Supreme

Court’s Texas death penalty case law leading up to and including

Penry II.1 The Court’s continuing mixed signals on issues of

critical importance to Texas’s criminal justice system are

unfortunate. It is to be hoped that, for the sake of certainty, the

Court will clarify its jurisprudence in the cases on which it just

granted certiorari.2

The majority opinion grants habeas relief to Nelson based

on an adjective. It concludes that Nelson’s mitigating evidence

could not be given “full effect” by the jury at sentencing due to

the inadequacy of the pre-1991 Texas death penalty special issues.

It concludes, based on some language in the Court’s opinions, that

1
In 1992, we reheard the Graham case en banc for the same
reason. Graham v. Collins, 950 F.2d 1009 (5th Cir. 1992) (en
banc), aff’d, 506 U.S. 461, 113 S. Ct. 892 (1993).
2
See Cole v. Dretke, 418 F.3d 494 (5th Cir. 2005), cert.
granted, 2006 WL 1523202 (Oct. 13, 2006) (No. 05-11284); Brewer v.
Dretke, 442 F.3d 273 (5th Cir. 2006), cert. granted, 2006 WL
1528242 (Oct. 13, 2006) (No. 05-11287).

108
“full effect,” not just “some effect,” is now the baseline for

constitutionally adequate jury evaluation of a defendant’s

mitigating evidence.

This conclusion marks a surprising result in a habeas

petition governed by AEDPA, which mandates affirmance of state

criminal convictions unless the state court’s decision was contrary

to, or an unreasonable application of, federal law. First, Nelson

proffered mitigating evidence of a sort that this court has

frequently encountered: (1) his mother rejected him and he had no

relationship with a child he had sired; (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. This court has upheld

numerous capital sentences against claims that similar evidence

could not be given sufficient effect by Texas juries under the pre-

1991 statutes. The Supreme Court has frequently refused to review

those decisions, and prisoners were executed.3 Today’s result

3
See, e.g., Hernandez v. Johnson, 248 F.3d 344 (5th Cir.),
cert. denied sub nom. Hernandez v. Cockrell, 534 U.S. 1043, 122 S.
Ct. 621 (2001); Emery v. Johnson, 139 F.3d 191 (5th Cir. 1997),
cert. denied, 525 U.S. 969, 119 S. Ct. 418 (1998); Davis v. Scott,
51 F.3d 457 (5th Cir.), cert. denied, 516 U.S. 992, 116 S. Ct. 525
(1995); Jacobs v. Scott, 31 F.3d 1319 (5th Cir. 1994), cert.
denied, 513 U.S. 1067, 115 S. Ct. 711 (1995); Lackey v. Scott,
28 F.3d 486 (5th Cir. 1994), cert. denied, 513 U.S. 1086, 115 S.
Ct. 743 (1995); Clark v. Collins, 19 F.3d 959 (5th Cir. 1994),
cert. denied, 513 U.S. 966, 115 S. Ct. 432 (1994); Motley v.
Collins, 18 F.3d 1223 (5th Cir.), cert. denied, 513 U.S. 960,
115 S. Ct. 418 (1994); Madden v. Collins, 18 F.3d 304 (5th Cir.
1994), cert. denied, 513 U.S. 1156, 115 S. Ct. 1114 (1995); Russell
v. Collins, 998 F.2d 1287 (5th Cir. 1993), cert. denied, 510 U.S.

109
suggests a “sea change”4 from those decisions and their

understanding of the Court’s case law.

Second, the majority’s reasoning implies that the Penry

line of cases, which was described by the Court as an “exception”

to the “rule,” commencing with Jurek, of the overall

constitutionality of the Texas sentencing issues,5 has become the

“new rule” to which Jurek, Franklin, Graham, and Johnson are now

exceptions. Yet Penry I is self-described as “not a new rule”

(which means that it may be applied retroactively in habeas cases),6

and none of its progeny has altered that characterization. Even

more potently, neither Penry II, Tennard, nor Smith overruled the

other line of cases. If, however, “full effect” has become the test

for mitigating evidence, rather than “some effect” or “within the

1185, 114 S. Ct. 1236 (1994); Callins v. Collins, 998 F.2d 269 (5th
Cir. 1993), cert. denied, 510 U.S. 1141, 114 S. Ct. 1127 (1994);
Drew v. Collins, 964 F.2d 411 (5th Cir.), cert. denied, 509 U.S.
925, 113 S. Ct. 3044 (1993); Lincecum v. Collins, 958 F.2d 1271
(5th Cir.), cert. denied, 506 U.S. 957, 113 S. Ct. 417 (1992);
Barnard v. Collins, 958 F.2d 634 (5th Cir. 1992), cert. denied, 506
U.S. 1057, 113 S. Ct. 990 (1993); Mayo v. Lynaugh, 893 F.2d 683
(5th Cir. 1990), modified sub nom. Mayo v. Collins, 920 F.2d 251
(5th Cir. 1990), cert. denied, 502 U.S. 898, 112 S. Ct. 272 (1991).
4
But cf. Johnson v. Texas, 509 U.S. 350, 365, 113 S. Ct. 2658,
2668 (1993) (stating that Penry did not “effec[t] a sea change in
this court’s view of the constitutionality of the former Texas
death penalty statute”) (quoting Graham, 506 U.S. at 474, 113 S.
Ct. at 901).
5
Graham, 506 U.S. at 491, 113 S. Ct. at 910.
6
Penry v. Lynaugh, 492 U.S. 302, 315, 109 S. Ct. 2934, 2945
(1989)(Penry I).

110
effective reach of the jury,” then the majority’s decision is

irreconcilable with the Jurek-Franklin-Johnson-Graham line of cases.

This court cannot “underrule” the Supreme Court. Our duty

is to harmonize its decisions as well as possible. We are always

bound by the force of stare decisis, which caused Justice Kennedy

to comment in Johnson that

[t]he interests of the State of Texas, and of
the victims whose rights it must vindicate,
ought not to be turned aside when the State
relies upon an interpretation of the Eighth
Amendment approved by this Court, absent
demonstration that our earlier cases were
themselves a misinterpretation of some
constitutional command.

Johnson, 509 U.S. at 366, 113 S. Ct. at 2668 (citations omitted).

II. THE “CLEARLY ESTABLISHED” LAW

With this preface, a closer analysis of the majority’s

opinion can begin. Billy Ray Nelson’s habeas petition was rejected

by the state courts for reasons that had nothing to do with this

court’s now-abandoned “constitutional relevance” and “uniquely

severe” evidentiary thresholds. See Tennard v. Dretke, 542 U.S.

274, 124 S. Ct. 2562 (2004). The state courts conducted thoughtful

and thorough analyses of Nelson’s proffered mitigating evidence,

and determined that all such evidence was sufficiently encompassed

by the former Texas special issues and did not run afoul of Penry

v. Lynaugh, 492 U.S. 302, 109 S. Ct. 2934 (1989)(Penry I).

111
 Nevertheless, and despite the demanding AEDPA

“unreasonableness standard,”7 the majority now holds that Nelson is

entitled to relief because there was a “reasonable likelihood” that

Nelson’s jury was prevented from giving “full effect” to his

mitigating evidence. Whether the standard is that of “full effect”

or something else is the principal issue before this court. Only

last year, the author of today’s majority opinion stated the test

without a “full effect” gloss: “To grant relief on a Penry claim,

we must determine (1) whether the mitigating evidence has met the

‘low threshold for relevance,’ and, if so, (2) that the evidence

was beyond the effective scope of the jury.” Bigby v. Dretke,

402 F.3d 551, 564-65 (5th Cir. 2005) (Stewart, J.) (citations

omitted). The constitutional relevance of Nelson’s mitigating

evidence is not at issue here. But to say that a death penalty

must be upheld unless such evidence was “beyond the effective scope

of the jury,” as Bigby does (and as this dissent advocates), is a

7
The fact that a federal habeas court would have reached a
different conclusion than did the state court is insufficient to
merit habeas relief pursuant to AEDPA. See Brown v. Payton, 544
U.S. 133, 147, 125 S. Ct. 1432, 1442 (2005); Woodford v. Visciotti,
537 U.S. 19, 27, 123 S. Ct. 357, 361 (2002). The Court in Williams
was careful to note that “an unreasonable application of federal
law is different from an incorrect application of federal law,”
and, as such, the state court’s application of federal law must be
“objectively unreasonable,” as opposed to merely incorrect, for
habeas relief to be granted. Williams, 529 U.S. at 409-10, 120 S.
Ct. at 1521-22 (emphasis in original); see also Penry v. Johnson,
532 U.S. 782, 793, 121 S. Ct. 1910, 1919 (2001)(Penry II).
Consequently, this court overlooks the erroneous reasoning of state
courts, and reviews the reasonableness of their ultimate decision.
Neal v. Puckett, 286 F.3d 230, 236 (5th Cir. 2002)(en banc), cert.
denied, 537 U.S. 1104, 123 S. Ct. 963 (2003).

112
much different test than whether such evidence could be given “full

effect” by the jury.

The majority opinion cites every instance in which

opinions of the Court — in dicta or dissents — have employed the

term “full effect”. Unfortunately, the course of the Court’s

jurisprudence, in our view, is far more complex than reliance on

one adjective — “full” — would suggest.

In the beginning, in Jurek v. Texas, 428 U.S. 262,

96 S. Ct. 2950 (1976), the Supreme Court upheld the

constitutionality of the Texas special issues, noting that Texas’s

sentencing scheme permitted the jury to “consider whatever evidence

of mitigating circumstances the defense can bring before it.” Id.

at 273, 96 S. Ct. at 2957. The special issues were not seen to

preclude the consideration of mitigating evidence, but rather,

served to “guide[] and focus[] the jury’s objective consideration

of the particularized circumstances of the individual offense and

the individual offender.” Id. at 274, 96 S. Ct. at 2957. Such

focusing was seen as beneficial, as it promoted evenhandedness by

the jury, allowed an individualized assessment of the defendant’s

culpability, and guarded against arbitrary results. Cf. Lockett v.

Ohio, 438 U.S. 586, 605-06, 98 S. Ct. 2954, 2965 (1978)

(invalidating Ohio death penalty statute that altogether prevented

the jury from considering relevant mitigating evidence; the Ohio

statute was explicitly compared unfavorably to the Texas statute).

There is thus no basis to conclude as a general matter that the

113
Texas special issues will fail to allow a jury to weigh a

petitioner’s mitigating evidence.

This assessment of the special issues was confirmed in

Franklin v. Lynaugh, 487 U.S. 164, 108 S. Ct. 2320 (1988), as the

Supreme Court again rejected a challenge to the constitutionality

of the special issues. In that case the petitioner argued that

mitigating evidence of his good behavior while in prison presented

in his defense had relevance beyond the special issues,

particularly the second special issue, which concerns “future

dangerousness.” In denying habeas, the Court held that all

“relevant aspects” of the petitioner’s character could be

encompassed by the second special issue. Id. at 178, 108 S. Ct. at

2329. More important, in commenting on the adequacy of the special

issues, the plurality qualified the broad statement in Eddings v.

Oklahoma, 455 U.S. 101, 102 S. Ct. 869 (1982), that the sentencing

jury may not be precluded from considering “any relevant,

mitigating evidence.” In the plurality’s view, Eddings and

Lockett did not prevent a state from “structuring or giving shape

to the jury’s consideration of . . . mitigating factors.”

Franklin, 487 U.S. at 179, 108 S. Ct. at 2330. The Court thus

rejected the contention that a catch-all instruction allowing the

jury an independent basis for rendering a sentence other than death

was necessary, as such an instruction would overrule Jurek. Id. at

180 & n.10, 108 S. Ct. at 2330 & n.10. Jurek had approved the

114
Texas special issues, and the Court had repeatedly referred with

approval to Texas’s sentencing scheme, see Franklin, 487 U.S. at

182 n.11, 108 S. Ct. at 2331 n.11 (citing cases), precisely because

it reconciled the Court’s twin concerns for statutory structuring

and for jury flexibility to consider mitigating evidence. Justice

O’Connor’s concurrence in the judgment presaged her view in Penry I

that Jurek did not preclude a “claim that, in a particular case,”

the special issues were constitutionally inadequate. Penry I,

492 U.S. at 321, 109 S. Ct. at 2948. However, from Franklin,

including Justice O’Connor’s special concurrence, it is clear that

the Texas special issues ought to be constitutional in the vast

majority of cases.

Ultimately, the question of what exactly it means for a

court to give “full consideration” to a habeas petitioner’s

mitigating evidence was answered in the cases of Graham v. Collins,

506 U.S. 461, 113 S. Ct. 892 (1993), and Johnson v. Texas, 509 U.S.

350, 113 S. Ct. 2658 (1993). Although Graham came to the Supreme

Court on collateral, as opposed to direct, review, and was thus

subject to analysis under Teague v. Lane, 489 U.S. 288, 109 S. Ct.

1060 (1989), the case was nevertheless instrumental in explaining

the sufficiency of state death penalty statutes. In that case, the

petitioner argued that evidence of his youth and transient

upbringing had mitigating impact beyond the special issues. The

Court rejected this contention, again turning to Jurek. Death

penalty statutes only had to supply the defendant with a

115
“constitutionally adequate” consideration of his mitigating

evidence, which Texas’s special issues did. Graham, 506 U.S. at

470, 113 S. Ct. at 899. The majority explained Lockett, Eddings,

Skipper,8 Hitchcock,9 and Penry I as being constitutionally

defective because “relevant mitigating evidence was placed beyond

the effective reach of the jury.” Id. at 475, 113 S. Ct. at 902.

The fact that the defendant’s evidence might have “some arguable

relevance” beyond the special issues did not invalidate the special

issues. Id. at 475-76, 113 S. Ct. at 902. This is because

“virtually any mitigating evidence is capable of being viewed as

having some bearing on the defendant’s ‘moral culpability’ apart

from its relevance to the particular concerns embodied in the Texas

special issues.” Id. at 476, 113 S. Ct. at 902. Again, citing

Franklin and Jurek, the Court determined that Texas’s death penalty

statute allowed mitigating evidence to be adequately considered

while permissibly focusing the considerations of the sentencing

jury. Id. Graham, a majority opinion, thus stands for the

proposition that a Texas jury may constitutionally render a

sentence of death even where a defendant presents mitigating

evidence that has some arguable relevance beyond the special

issues.

8
Skipper v. South Carolina, 476 U.S. 1, 106 S. Ct. 1669
(1986).
9
Hitchcock v. Dugger, 481 U.S. 393, 107 S. Ct. 1821 (1987).

116
 Just months later, a majority of the Court in Johnson

reaffirmed the reasoning of Graham, in a direct appeal in which the

appellant’s youth as an offender was his major mitigating quality.

Justice Kennedy’s opinion drew heavily from Graham, re-emphasizing

that while

Lockett and Eddings prevent a state from
placing relevant mitigating evidence beyond
the effective reach of the sentencer, . . . we
have held that there is no . . .
constitutional requirement of unfettered
sentencing discretion in the jury, and states
are free to structure and shape mitigating
evidence in an effort to achieve a more
rational and equitable administration of the
death penalty.

Johnson, 509 U.S. at 362, 113 S. Ct. at 2666 (citations and

internal quotation marks omitted). Recapitulating the cases

construing Texas’s special issues, the Court confirmed a narrow

interpretation of Penry I, “making it clear that [Jurek, Lockett

and Eddings] can stand together with Penry.” Id. at 365,

113 S. Ct. at 2667-68. The Court closely analyzed youthfulness as

a mitigating factor and held that “there is ample room in the

assessment of future dangerousness for a juror to take account of

the difficulties of youth . . . .” Id. Penry’s condition, in

contrast, rendered him unable to learn from his mistakes and could

only be considered to aggravate, not lessen, his future

dangerousness.10

10
The Court quoted Justice Brennan’s dissent in Blystone, which
acknowledged the ability of the Texas special issues to afford jury
consideration of a defendant’s moral culpability:

117
 The Court concluded Johnson with the observation,

originating in Graham, that Jurek would have to be overruled if,

whenever a defendant proffers mitigating evidence “that has some

arguable relevance beyond the special issues,” a fourth jury issue

in mitigation would be required. Id. at 372, 113 S. Ct. at 2671.

Such an issue, as the Court reasoned, would effectively abrogate

the state’s power, repeatedly affirmed by the Court, to structure

the consideration of mitigating evidence.

Graham and Johnson are majority opinions of the Court.11

Penry I is also a majority opinion, but Penry I represented a fact-

specific exception to the Jurek line of cases. This was made

abundantly clear in Graham, 506 U.S. at 475, 113 S. Ct. at 902.

[The two special issues] require the jury to
do more than find facts supporting a
legislatively defined aggravating
circumstance. Instead, by focusing on the
deliberateness of the defendant's actions and
his future dangerousness, the 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, 113 S. Ct. at 2671 (quoting Blystone v. Pennsylvania,
494 U.S. 299, 322, 110 S.Ct. 1078, 1091 (1990) (Brennan, J.,
dissenting)).
11
Notably, in both Graham and Johnson, spirited dissents
capture the same debate over “full effect” and “some effect” that
preoccupies us still; but the advocates of “full effect” lost.
See, e.g., Graham, 506 U.S. at 504, 113 S. Ct. at 917 (Souter, J.,
dissenting); Johnson, 509 U.S. at 374, 113 S. Ct. at 2672.
(O’Connor, J., dissenting).

118
What distinguished Penry I from the aforementioned cases was that,

according to Penry’s experts, he had extremely poor impulse

control, and, owing to his limited mental abilities, he was unable

to appreciate the consequences of his actions or learn from his

mistakes. Unlike the instant case, there was no suggestion that

Penry’s condition would improve; his brain damage was allegedly

permanent. Such evidence might have diminished Penry’s

culpability, but it also served to indicate, as all sides agreed,

that he would always be a threat to society. As such, with regard

to the “future dangerousness” special issue, Penry’s evidence

served “only as an aggravating factor” for the jury. Id. at 323,

109 S. Ct. at 2949. The defense found itself in the unenviable

position of arguing that a “juror should vote ‘no’ on one of the

special issues even if she believed the State had proved the answer

should be ‘yes.’” Id. at 325, 109 S. Ct. at 2950. The prosecution

in turn stressed that “the jurors had taken an oath to follow the

law, and that they must follow the instructions.” Id. This

created a uniquely unfortunate situation in which a reasonable

juror could credit the mitigating evidence and feel a sentence

other than death was warranted for Penry, yet nevertheless be

compelled to answer the special issues in the affirmative and

render a sentence of death. Unlike Graham and Johnson, in which

the juries had the ability to give at least “some effect” to the

mitigating evidence presented by the defendants, it was “impossible

to give meaningful mitigating effect” to Penry’s evidence through

119
the special issues. Graham, 506 U.S. at 474, 113 S. Ct. at 901.

The Penry I jury had “no vehicle for expressing the view that Penry

did not deserve to be sentenced to death.” Penry I, 492 U.S. at

326, 109 S. Ct. at 2951.12

To quote Graham again: “In Penry, the defendant’s

evidence was placed before the sentencer but the sentencer had no

reliable means of giving mitigating effect to that evidence.”

Graham, 506 U.S. at 475, 113 S. Ct at 902 (emphasis added).

Penry I was thus “limited . . . [in] its scope,” as otherwise, it

could not be consistent with Jurek and Lockett, both of which were

repeatedly reaffirmed by the Court. Johnson, 509 U.S. at 304,

113 S. Ct. at 2668. In short, the “clearly established law” as of

1994 is not, as the majority argue, the Penry I “full effect” test,

but instead consists of Penry I together with Graham, Johnson,

Franklin, and Jurek.

The Court’s subsequent decisions in Penry II, Tennard v.

Dretke, and Smith v. Texas have muddied the waters, but they have

not replaced, much less overruled, Jurek, Franklin, Graham, and

Johnson. Each of the more recent cases resolves a narrow

12
This reading of Penry I is entirely consistent with, and
indeed anticipates, the Court’s later decision in Penry v. Johnson,
532 U.S. 782, 121 S. Ct. 1910 (2001)(Penry II). As with Penry I,
the Penry II Court rejected as “arbitrary” a death penalty system
that would encourage a juror to provide a “false answer” to one of
the special issues, thereby violating his oath as a juror. Id. at
801, 121 S. Ct. at 1923. It is only in these rare circumstances
that a jury finds itself without a vehicle to provide a “reasoned
moral response” to the defendant’s evidence.

120
procedural issue. Penry II considered the sufficiency of a

“nullification instruction” to the jury that Texas courts thought

would alleviate the problem in Penry’s case. The Court explained

why the nullification instruction would cause jurors to violate

their oaths if they felt, notwithstanding that Penry’s condition

required a positive answer to his deliberateness and future

dangerousness, he was less culpable because of his mental

retardation. The Court’s opinion mentions “full effect” once, but

its overruling of the nullification instruction was not tied to

whether the jury could give “full effect” to Penry’s mitigating

evidence. The jurors’ catch-22 was independent of the amount of

the mitigating effect.

In Tennard, the Court held that the Fifth Circuit’s

“uniquely severe permanent handicap” and “nexus” tests for

identifying Penry evidence were incorrect, and that for COA

purposes, “reasonable jurists would find debatable or wrong the

District Court’s disposition of Tennard’s low-IQ-based Penry

claim.” Tennard, 542 U.S. at 289, 124 S. Ct. at 2573. Indeed,

Tennard found that the petitioner’s low IQ evidence had “the same

essential features” as Penry’s mental retardation evidence: His low

IQ could be considered irrelevant to mitigation while having only

aggravating relevance to his future dangerousness. Id. at 288,

113 S. Ct. at 2572. Tennard did not cite Graham or Johnson.

121
Because the decision expressly models its analysis on Penry I, it

cannot be said to extend Penry I or to undercut Graham or Johnson.

Nowhere does Tennard require that the jury be able to

give “full effect” to mitigating evidence in its sentencing

deliberations. Instead, the Court quotes a potpourri of earlier

decisions requiring states to enable the jury to “consider and give

effect to” mitigating evidence;13 forbidding states to “preclude the

sentencer from considering any ‘relevant mitigating evidence’”;14

and asserting virtually no limits on a defendant’s ability to

proffer relevant mitigating evidence.15 Tennard compels Texas

courts confronted with low IQ evidence to submit a proper special

issue; Tennard also counsels fact-specific evaluation of

petitioners’ mitigation evidence for its application within the

pre-1991 Texas special issues.

A final word about Tennard: Justice Kennedy concurred.

Does this mean that he had changed his mind since he wrote Johnson,

or that he viewed Tennard as reconcilable with Johnson? A

“reasonable jurist” would draw the latter conclusion, since one can

hardly assume Justice Kennedy would have failed to explain his

13
Boyde v. California, 494 U.S. 370, 377-78, 110 S. Ct. 1190,
1196 (1990). Boyde held that jury discretion could be guided by
the States.
14
Payne v. Tennessee, 501 U.S. 808, 822, 111 S. Ct. 2597, 2606
(1991).
15
Eddings v. Oklahoma, 455 U.S. 104, 114, 102 S. Ct. 869, 877
(1982).

122
departure from the very explicit cabining of Penry I that he

accomplished with the majority opinion in Johnson.

Smith v. Texas, 543 U.S. 37, 125 S. Ct. 400 (2004), is

the most recent case in the Penry line, and it, too, represents a

narrow procedural holding. The Court reversed a Texas Court of

Criminal Appeals decision that utilized the “constitutional

relevance” tests adopted by the Fifth Circuit but rejected in

Tennard, and purported to distinguish a nullification instruction

from the instruction overruled by the Supreme Court in Penry II.

That the Court would enforce its prior decisions with a per curiam

reversal is hardly surprising. That the Court would employ such a

brief opinion to expand the reach of Penry I and undermine Graham

and Johnson sub silentio is unlikely. The majority in this case

points to language supporting the “unlikely” reading. Smith

initially quotes Penry II as holding a similar nullification

instruction inadequate to enable a jury to give “full

consideration” and “full effect” to defendant’s mitigating

circumstances. In the third paragraph of the decision, the Court

states: “Approximately two years prior to the trial, we had held

that presenting only these two special issues, without additional

instructions regarding the jury’s duty to consider mitigation

evidence, violated the Eighth Amendment.” Id. at 39, 125 S. Ct. at

402 (citation omitted). After explaining the plain errors in the

state court’s decision, the Smith Court states that: “as in

Penry II, the burden of proof on the State was tied by law to

123
findings of deliberateness and future dangerousness that had

little, if anything, to do with the mitigation evidence petitioner

presented.” Id. at 48, 125 S. Ct. at 407 (footnote omitted).

Smith’s mitigation evidence included potentially organic learning

disabilities and speech handicaps; low IQ and special education in

school; good behavior in school; a drug-addicted criminal father;

and his age of nineteen at the date of the offense. Smith

concludes, without analysis of the types of mitigating evidence,

that because it was “relevant mitigation evidence for the jury

under Tennard and Penry I,” the nullification instruction was

inadequate under Penry II. Id. at 48-49, 125 S. Ct. at 407.

This court may not overlook the potentially broad

language in Smith. On the other hand, Smith failed to cite or

distinguish Jurek, Franklin, Graham, or Johnson. Since Chief

Justice Rehnquist and Justice Kennedy joined Smith, the question

again arises whether they did so in deference not just to a limited

view of Penry II and Tennard but also, and without explanation, to

a de facto overruling of Graham and Johnson through Smith’s casual

incorporation of the appellant’s youth, good school behavior, and

disadvantaged (not abused) childhood as Penry mitigation evidence.

Finally, notwithstanding Smith’s two references to “full

effect,” the opinion also quotes Penry II as recognizing that “the

key under Penry I is that the jury be able to ‘consider and give

effect to [a defendant’s mitigation evidence] in imposing

124
sentence.’” Smith, 543 U.S. at 46, 125 S. Ct. at 406 (emphasis in

original).

“Giving effect” to mitigating evidence is not the same as

allowing a jury to give “full effect.” The latter formulation, in

effect, rejects a state’s ability to focus the jury’s consideration

of mitigating evidence. Here lies the crux of our difference with

today’s majority opinion. Despite its efforts to turn narrow

procedural decisions and imprecise language into a constitutional

mandate of “full effect,” the Supreme Court’s case law will not

support that conclusion. As an inferior court, we can overlook

neither Jurek, Franklin, Graham, and Johnson, nor Penry I,

Penry II, Tennard and Smith. Sadly, for the State of Texas, for

certainty and stare decisis, and for defendants who deserve to know

their fate before the last minute, we seem no further along in

understanding the Court’s pronouncements today than we were fifteen

years ago when we reheard Graham en banc. See Graham v. Collins,

950 F.2d 1009 (5th Cir. 1992) (en banc), aff’d, 506 U.S. 461,

113 S. Ct. 892 (1993).

The interrelated rules we believe must be holistically

drawn from the Court’s decisions — until we are told otherwise —

are as follows: First, courts must consider all mitigating

evidence for its comprehensibility within the Texas special issues.

Second, if, as with Penry I and Tennard low IQ evidence, the

proffered evidence has only aggravating force beyond the issues of

125
deliberateness and future dangerousness, re-sentencing is required.

In such cases, the proffered evidence was “beyond the effective

reach of the jury” such that “the jury was precluded from

considering the evidence.” Third, evidence of such qualities as a

defendant’s youthfulness at the date of the crime and a “transient”

upbringing16 can, however, be considered within the special issues.

III. THE MITIGATING EVIDENCE

Nelson offered in evidence that (l) his mother rejected

him; (2) he had troubled relationships with his brother and women;

(3) he was denied a relationship with his child; (4) he was

intoxicated by drugs and alcohol when he committed the crime; and

(5) he suffered from a treatable borderline personality disorder.

The majority opinion dwells principally on the last element,

subsidiarily on the rejection by his mother, and not at all on

Nelson’s substance abuse or other troubled relationships.

Consequently, we focus on the first two characteristics. It must

be pointed out, though, that the majority’s “full effect” test

apparently renders the pre-1991 Texas sentencing hearing

constitutionally inadequate for any mitigating evidence except for

youthfulness (and good behavior in prison).17 After all, nearly any

mitigating evidence can be said to have “some arguable relevance”

beyond the deliberateness and future dangerousness inquiries.

16
See Graham, 506 U.S. at 476, 113 S. Ct. at 902.
17
See Franklin, 487 U.S. at 179 n.9, 108 S. Ct. at 2330 n.9.

126
 Nelson’s expert, Dr. Hickman, testified that Nelson had

anger issues resulting from his childhood experiences, and that

treatment for his borderline personality disorder would require

long-term psychotherapy and medication. Hickman also suggested

that individuals with borderline personality disorder tend to be

difficult to treat, and success with Nelson was not guaranteed.

However, Hickman further testified that if successfully treated,

Nelson would no longer represent a danger to society.

Nelson’s evidence is fundamentally distinguishable from

that of Penry, who was presented as being beyond treatment because

of an insufficient mental acuity and inability to learn from his

mistakes. In contrast, Nelson’s defense offered the jury evidence

that Nelson could get better, and that if he spent the rest of his

life in prison, he would no longer represent a future danger to

society. Unlike Penry, but like the defendant in Graham, Nelson’s

attorneys could honestly and “vigorously urge[] the jury to answer

‘no’ to the special issues based upon” the evidence presented.

Graham, 506 U.S. at 475, 113 S. Ct. at 902.

With regard to the “deliberateness” of the crime,

Nelson’s jury could have concluded, based on his maternally-

deprived upbringing, his “anger issues” and his poor impulse

control, that he did not sexually abuse his victims and murder

Charla Wheat “deliberately.” He was, in other words, too warped to

have acted responsibly. Alternatively, the jury could have

balanced these mitigating factors against his self-induced drug

127
abuse and intoxication, and the speculation embodied in

Dr. Hickman’s connecting his behavioral problems to the crime, and

found this crime to be “deliberate.”

Nelson’s jury was also presented with clear alternatives

in regard to future dangerousness. It could believe Hickman’s

testimony and conclude that Nelson was less morally culpable, given

his mental illness, and that with proper treatment, Nelson would

not present a future danger. Alternatively, the jury could follow

the prosecution’s theory that Nelson was fully culpable for his

actions and would continue to be dangerous even in prison.18 That

the jury chose the latter assessment of Nelson does not mean that

habeas relief must issue. Indeed, in order to even make a

plausible argument that a Penry violation occurred in the instant

case, the majority recasts the record to suggest that Nelson would

be untreatable. This is simply not the case. Dr. Hickman’s

purpose for testifying was not just to illustrate Nelson’s

condition but to demonstrate his potential for change. That

potential clearly found mitigating expression in both the

“deliberateness” and “future dangerousness” issues.19

18
The prosecution did not agree with Hickman’s assessment of
Nelson’s mental condition, as it did not have sufficient evidence
to make a diagnosis. Its expert, Dr. Grigson, concluded only that
Nelson would continue to pose a threat.
19
The majority further relies upon a string of hypotheticals
to create its Penry violation. If his jury believed that Nelson
suffered from borderline personality disorder; if that jury
believed that Nelson was untreatable or would not receive proper
treatment in prison; and if that jury concluded that Nelson’s

128
 Because this case is reviewed under AEDPA, we must, as

the majority acknowledges, find the state courts’ resolution of the

Penry issue not simply wrong, but unreasonable. Further, the

“unreasonableness” must here stem from a conclusion that there is

a “reasonable likelihood” — not a “mere possibility” — that the

jury applied the two issues “in a way that prevents the

consideration of constitutionally relevant evidence.” Johnson,

509 U.S. at 367-68, 113 S. Ct. at 2669 (paraphrasing Boyde,

494 U.S. at 380, 110 S. Ct. at 1198). The “reasonable likelihood”

standard is applied according to a “commonsense understanding of

the record in the light of all that has taken place at the trial.”

Id. at 381, 110 S. Ct. at 1198. Finally, the fact that “a juror

might view the evidence . . . as aggravating, as opposed to

mitigating, does not mean that the rule of Lockett is violated.”

Johnson, 509 U.S. at 368, 113 S. Ct. at 2669. As illustrated

above, there is no reasonable likelihood that the jury applied the

special issues in an unconstitutional manner; in expressing its

“reasoned moral response” to Nelson’s evidence, the jury could have

relied upon Hickman’s testimony and concluded that Nelson would not

remain a danger in prison. Based on our interpretation that

mental illness had aggravating effect as to the special issues,
only then is it possible that the jury might have felt compelled to
answer “yes” as to the future dangerousness special issue, even if
the jury wished a sentence other than death due to Nelson’s
borderline condition. This attenuated theory of the jury
deliberations extends Penry I far beyond its intended boundaries,
without instructions from the Supreme Court.

129
Johnson and Graham remain good law, coexisting with Penry and its

progeny, we cannot subscribe to the unreasonableness of the state

courts’ determination.

Clearly, the evidence of a treatable mental condition and

a deprived family background could be afforded decisive, if perhaps

not “full,” mitigating effect under the pre-1991 sentencing scheme.

The Court stated in Graham:

We see no reason to regard the circumstances
of Graham’s family background and positive
character traits in a different light [from
Franklin]. Graham’s evidence of transient
upbringing [while his mother spent long
periods hospitalized for a “nervous
condition”] more closely resembles Jurek’s
evidence of age, employment history, and
familial ties than it does Penry’s evidence of
mental retardation and harsh physical abuse.

Graham, 506 U.S. at 476, 113 S. Ct. at 902.

The Court, of course, held in Graham that to require an

additional jury instruction would be a “new rule” of constitutional

law. We do not pretend that Nelson’s evidence of personality

disorder and maternal rejection is on all fours with Jurek,

Franklin, Graham, or Johnson. But the majority cannot pretend that

such evidence — of a treatable mental condition and not “harsh

physical abuse” — compels habeas relief based on Penry I, Penry II,

Tennard or Smith.20

20
The holding of Graham, based on Teague, is that Penry I did
not dictate constitutional relief based on the defendant’s
youthfulness. How, then, could the different evidence of a
treatable mental disorder have become so indistinguishable from
Penry as to render the state court’s decision in this case

130
 Reinforcing our conclusion is the inconsistency between

the majority’s analysis of a treatable mental disorder today and

our court’s analysis of an untreatable mental condition —

schizophrenia — a year ago. See Bigby v. Dretke, 402 F.3d 551 (5th

Cir. 2005). Today’s majority overrules the decision in Lucas v.

Johnson, 132 F.3d 1069 (5th Cir. 1998), which held that the Texas

special issues furnished sufficient scope for a jury to give effect

to evidence of a treatable mental condition. Id. at 1082-83. Last

year, in Bigby, the author of today’s opinion distinguished Lucas

because of the different ramifications of a treatable mental

disorder under the Texas special issues. Bigby, 402 F.3d at 571.

If Bigby found no conflict between Lucas and the Court’s decisions

in the Penry line, how can the majority assert today that a

comparable decision by the Texas courts was “unreasonable?”21

IV. CONCLUSION

Nelson’s evidence had constitutionally adequate

mitigating effect as to both of the special issues, and his jury

was neither foreclosed from giving effect to the evidence by the

Texas special issues, nor was it put in the position of rendering

unreasonable?
21
Today’s majority decision is also squarely contrary to the
recent decision in Cole v. Dretke, 418 F.3d 494 (5th Cir. 2005)
cert. granted, that the “Texas special issues allowed the jury to
give ‘full consideration and full effect’” to Cole’s mitigating
evidence of a destructive family background. Id. at 511.
Nevertheless, two members of today’s majority panel joined the Cole
decision.

131
a false verdict, as in Penry I and Penry II. If the majority’s

expansive reading of Penry compels the result reached today, it is

to be hoped that the Supreme Court will so inform us definitively

in the cases now pending before it. Because none of the Court’s

precedents to date compels the “full effect” test or the result

reached by the majority, it cannot be said that the state courts

unreasonably applied federal law. I would deny habeas relief, and

therefore, I respectfully dissent.

132
JERRY E. SMITH, Circuit Judge, dissenting:

I enthusiastically join the superb dissenting opinions penned

respectively by Chief Judge Jones and Judges Clement and Owen.

I dissent separately, not to discuss the merits of this case but to

highlight the embarrassing procedural tangle caused by the various

actions of the Supreme Court and this court in Penry-related cases.

In its Penry cases, this court has been inconsistent in decid-

ing whether to (1) finalize a case and issue the mandate, (2) grant

en banc rehearing, or (3) hold a case indefinitely. Presumably the

instant case (Nelson) was taken en banc to reconcile this circuit’s

Penry jurisprudenceSSthat is, to harmonize our numerous Penry-

related cases with each other and with the opaque pronouncements of

the Supreme Court.1 But if that were true, one would think the

court would want to hold up on finalizing any Penry decisions until

the en banc court has spoken. Instead, we have had a potpourri of

actions on our various Penry cases. Any well-intentioned plan to

step back and comprehensively review our Penry jurisprudence has

crashed and burned.

1
In its most recent explication of its habeas corpus
jurisprudence, the Court has reminded us that in interpreting
“clearly established Federal law” under 28 U.S.C. § 2254(d)(1), we
look only to the Court’s holdings and not its dicta. Carey v.
Musladin, No. 05-785, 2006 U.S. LEXIS 9587, at *8-*9 (U.S. Dec. 11,
2006) (reversing a finding by the Ninth Circuit that the state
court had unreasonably applied clearly established Federal law).

133
 An examination of the time line in this court’s Penry cases

only adds to the confusion. The panel decision in Nelson was is-

sued on August 12, 2003.2 The Supreme Court issued Tennard v.

Dretke, 542 U.S. 274 (2004), on June 24, 2004. Four days later the

Court granted certiorari, vacated, and remanded Nelson “for further

consideration in light of Tennard . . . .”3

On remand in Nelson, this court issued its panel opinion on

March 1, 2006, stating that “[t]his death penalty case is reconsid-

ered pursuant to the Supreme Court’s instruction following its sum-

mary grant of certiorari and the vacating of our prior opinion

based on Tennard . . . .”4 No petition for rehearing or for re-

hearing en banc was ever filed in Nelson. Nonetheless, on

March 13, 2006, this court, “on the Court’s own motion,” voted to

rehear Nelson en banc.5

In Tennard, which is the most prominent recent Fifth Circuit

Penry case, however, no judge held the mandate to await an en banc

decision in Nelson. Tennard is the most significant of our current

Penry cases because the Supreme Court vacated the panel opinion

2
See Nelson v. Cockrell, 77 Fed. Appx. 209 (5th Cir. Aug. 12,
2003).
3
Nelson v. Dretke, 542 U.S. 934 (June 28, 2004).
4
Nelson v. Dretke, 2006 U.S. App. LEXIS 5272, at *1 (5th Cir.
Mar. 1, 2006).
5
Nelson v. Dretke, 442 F.3d 912, 912 (5th Cir. Mar. 13, 2006)
(per curiam).

134
and, in an opinion by Justice O’Connor, rebuked this court for its

approach to Penry questions.6 On remand in Tennard, a Fifth Cir-

cuit panel issued its opinion on March 1, 2006, which is coinciden-

tally the same day the panel opinion in Nelson, remanded in light

of Tennard, also issued.7 Yet, no judge held the mandate in Ten-

nard, and no effort was made either to reconsider Tennard en banc

or to put that case on hold pending en banc review in Nelson. One

can only guess that a significant fact for some judges was that the

habeas petitioner had prevailed on remand in Tennard; moreover, the

losing party (the state) did not petition for rehearing.

Other Penry cases of note were active at this time. On Novem-

ber 15, 2004, the Supreme Court had vacated and remanded Cole v.

Dretke, 99 Fed. Appx. 523 (5th Cir. May 19, 2004) (per curiam), for

reconsideration in light of Tennard.8 The panel issued its opinion

on remand in Cole v. Dretke, 418 F.3d 494 (5th Cir. July 22, 2005),

and affirmed the judgment denying habeas relief. In Cole v. Dret-

ke, 443 F.3d 441 (5th Cir. Mar. 17, 2006) (per curiam), however,

and unlike in Nelson, this court, after a poll, denied rehearing en

banc over a strong dissent that included the following statement:

“The responsible, efficient and just course . . . would have been

6
See Tennard, 542 U.S. at 282-89 (2004) (O’Connor, J.).
7
See Tennard v. Dretke, 442 F.3d 240 (5th Cir. Mar. 1, 2006).
8
See Abul-Kabir v. Dretke, 543 U.S. 985 (Nov. 15, 2004).

135
. . . for us to resolve promptly en banc the important issues

raised by the Cole panel decision and allow time for possible cor-

rection by the Supreme Court before permitting our numerous other

death penalty panels to generate more decisions without either en

banc or renewed Supreme Court guidance.”9 This was four days after

the court had granted en banc review in Nelson.

Also pending is Coble v. Dretke, 444 F.3d 345 (5th Cir.

Mar. 22, 2006), in which the panel, vacating the opinion it had is-

sued in Coble v. Dretke, 417 F.3d 508 (5th Cir. July 18, 2005),

took specific account of the Supreme Court’s decisions in Tennard

and Smith v. Texas, 543 U.S. 37 (Nov. 15, 2004) (per curiam), in

affirming the dismissal of the habeas petition.10 A judge placed

a hold on the mandate in Coble from August 8, 2005, through March

22, 2006, and again from July 17, 2006, to the present. A petition

for rehearing en banc is pending in Coble, but there has been no

en banc poll.

Somewhat similarly situated to Coble is the Brewer case, in

which the panel issued its initial opinion on May 31, 2005.11 On

June 21, 2005, a judge placed a hold on the mandate and has not re-

leased it in the intervening eighteen months. On March 1,

9
Cole, 443 F.3d at 443 (Dennis, J., dissenting from denial of
rehearing en banc).
10
Coble, 444 F.3d at 358 n.11.
11
See Brewer v. Dretke, 410 F.3d 773 (5th Cir. May 31, 2005).

136
2006SSthe same day the panel opinion issued in NelsonSSthe panel,

in Brewer v. Dretke, 442 F.3d 273 (5th Cir. Mar. 1, 2006) (per cur-

iam), denied the petition for panel rehearing (taking no action on

the petition for rehearing en banc), withdrew its opinion, and is-

sued a new one. A petition for rehearing en banc remains pending

in Brewer.

And then there is, finally, Garcia v. Quarterman, 456 F.3d 463

(5th Cir. July 13, 2006). There the panel grappled with Tennard

and with this court’s relevant caselaw, including Brewer and Bigby

v. Dretke, 402 F.3d 551 (5th Cir. Mar. 8, 2005), cert. denied, 126

S. Ct. 239 (2005). A judge held the mandate in Garcia on July 21,

2006, and a petition for rehearing en banc remains pending.

The Supreme Court’s responses to the foregoing have been some-

what perplexing after the issuance of its latest (2004) opinion in

Tennard. The most surprising development is that on October 13,

2006, the Court granted a petition for writ of certiorari in

Brewer.12 This is peculiar, because in Brewer the Fifth Circuit has

not yet acted on the petition for rehearing en banc and has not is-

sued the mandate. Possibly the High Court relied on the inaccurate

statement in Brewer’s certiorari petition that his “petition for

rehearing en banc was eventually denied.”13 In fact, our order

12
See Brewer v. Quarterman, 127 S. Ct. 433 (Oct. 13, 2006).
13
Petition for Writ of Certiorari in No. 05-11287, Brewer v.
Quarterman, at 2.

137
withdrawing the first opinion specifically stated that “[t]he peti-

tion for panel rehearing is DENIED.”14 Brewer remains pending in

this court, awaiting, at least in part, the issuance of the en banc

decision in Nelson.

There is no jurisdictional bar to Supreme Court review of non-

final cases from the courts of appeals, but it is unusual.15 Per-

haps the Court, in granting review in Brewer despite its non-

finality in this court, was influenced by Brewer’s insistence that

the “court’s intervention is once again necessary to resolve once

and for all the enduring confusion in the courts below regarding

the scope of Penry.”16 Yet, the postures of Brewer, Coble, and Gar-

cia are the same in this court: In all three, panel opinions deny-

ing habeas relief have been issued, petitions for rehearing en banc

have been filed, and the mandates have been stayed. The only dif-

ference is that in Brewer the petitioner, based on a mistaken view

of the procedural status of the case in the court of appeals, filed

a certiorari petition and has been rewarded (for whatever reason)

with the Supreme Court’s grant of review.

The Supreme Court has scheduled a trifecta of Penry cases for

argument on January 17, 2007. The same day it granted certiorari

14
Brewer, 442 F.3d at 275 (emphasis added).
15
ROBERT L. STERN ET AL., SUPREME COURT PRACTICE 75-78 (8th ed. 2002)
(citing 28 U.S.C. § 1254(1)).
16
Petition for Writ of Certiorari, supra, at 13.

138
in Brewer, it also did so in Cole, with Cole and Brewer consoli-

dated for argument.17 One week before granting certiorari in Brewer

and Cole, the Court granted review in a Penry case from the Texas

state courts.18 The Court’s willingness to address Penry questions

once again is welcome. Perhaps the High Court will issue a tongue-

lashing like the one Justice O’Connor penned in Tennard.19 If so,

it will be despite this court’s honest attempts to apply the

Court’s sundry pronouncements.

As Chief Judge Jones wisely states in her dissent in Nelson,

“[t]his court cannot ‘underrule’ the Supreme Court. Our duty is to

harmonize its decisions as well as possible. We are always bound

by the force of stare decisis.” So maybe, on the other hand, the

current Court will determine that the various panels of this court,

in the cases discussed above, have correctly applied the Court’s

17
See Abdul-Kabir v. Quarterman, 127 S. Ct. 432 (Oct. 13,
2006).
18
See Ex parte Smith, 185 S.W.3d 455 (Tex. Crim. App. Mar. 1,
2006), cert. granted, 127 S. Ct. 377 (Oct. 6, 2006).
19
“Despite paying lipservice to the principles guiding issuance
of a COA, . . . the Fifth Circuit . . . invoked its own restrictive
gloss on Penry I . . . .” Tennard, 542 U.S. at 283. “The Fifth
Circuit’s test has no foundation in the decisions of this Court.”
Id. at 284. “The Fifth Circuit was likewise wrong to have refused
to consider the debatability of the Penry question . . . .” Id. at
287. “[T]he Fifth Circuit’s screening test has no basis in our
precedents . . . .” Id. It is interesting to note Justice
O’Connor’s repeated reference to this court not as “the Court of
Appeals,” but as “the Fifth Circuit,” apparently to emphasize her
obvious pique.

139
precedents, as my dissenting colleagues show in their able

opinions.

In this regard, it is unfortunate that the en banc majority in

Nelson has insisted on issuing its majority opinion at this time,

in the wake of the grants of certiorari that I have noted. In-

stead, this court should have denied en banc rehearing in all the

recent Penry cases (Nelson, Brewer, Cole, Coble, and Garcia), so as

to give the Supreme Court the option of picking various ones of

them for review. By our piecemeal and inconsistent approach, we

have the incongruous situation of some cases held and others not,

and of some with certiorari petitions and some not, and lastly of

a case (Nelson) in which this court granted en banc review without

even the benefit of a petition for rehearing, and now has insisted

on issuing an en banc majority opinion in Nelson without the pre-

dictable guidance that will come from the Supreme Court’s review in

the cases to be argued on January 17. The en banc majority’s rush

to judgment is, in that sense, truly regrettable, and I respect-

fully dissent.

140
EDITH BROWN CLEMENT, Circuit Judge, with whom JONES, Chief Judge,

JOLLY, SMITH, BARKSDALE, and GARZA Circuit Judges, join dissenting

from the majority opinion:

AEDPA requires us to defer to the state habeas court’s

determination that the jury was not prevented from considering all

the mitigating evidence within the special issues because that

holding is neither contrary to nor an unreasonable application of

Supreme Court precedent.1 Accordingly, I respectfully dissent.

While this court has had many occasions to address Penry

issues generally, the Supreme Court has spoken relatively very few

times on the contentious issue presently before us: Jurek (youth,

employment history, aid to family), Franklin (good behavior in

prison), Penry I & II (mental retardation, child abuse), Graham

(youth, transient upbringing, good character traits),2 Johnson

(youth), Tennard (constitutional relevance, low IQ), and Smith

(constitutional relevance, Penry II instruction, youth, organic

1
The district court quotes the following language from the
state habeas court’s decision: “The jury charge and the special
issues allowed the jurors to give effect to all presented
mitigating evidence in their answers to the special issues . . . .”
D. Ct. Order at 37. A more precise statement, per Boyde v.
California, 494 U.S. 370, 380 (1990), would have been that there is
no reasonable likelihood that the jury applied the special issues
in a way that prevented it from considering Nelson’s mitigating
evidence. Nonetheless, there is no material difference for
purposes of our review.
2
Graham, as the majority opinion notes, merely held that
precedent in 1984 did not dictate that the petitioner should be
granted relief based on his potentially mitigating evidence.

141
learning disability, low IQ, good behavior in school, drug-addicted

father). None of those cases deal specifically with the type of

mitigating evidence offered by Nelson, i.e., familial discord

(rejection by his mother, trouble with his brother, inability to

relate to his illegitimate child), drug and alcohol addiction and

abuse, and (theoretically treatable) borderline personality

disorder. Further, none of those cases gave the Supreme Court the

opportunity—now before us—to apply AEDPA principles to focus on the

reasonableness of the state court’s ruling rather than the merits

of the petitioner’s claim.3 Since the Supreme Court has not spoken

to the precise type of mitigating evidence at issue here—and

certainly had not done so by 1994, when Nelson’s conviction became

final—it will be difficult to say that, under AEDPA, the state

habeas court acted contrary to or unreasonably applied federal law

as determined by the Supreme Court.

The Supreme Court’s decision in Brown v. Payton, 544 U.S. 133

(2005), is on-point and deserves more emphasis than the majority

3
Only Penry II and Tennard are post-AEDPA federal habeas
cases. The majority opinion’s contention that the Court was “fully
aware of the analytical constraints imposed by the deferential
AEDPA standard of review,” Maj. Op. at 18, is a gentle way of
obscuring that the Court did not decide whether the evidence fit
within the special issues, since that question had been answered in
Penry I. Rather, the Court granted habeas relief based on the
Texas trial court’s use of a nullification instruction. In
Tennard, the Court similarly did not consider whether the
mitigating evidence fit within the jury instructions. Rather, the
Court struck down this circuit’s “constitutional relevance”
screening test and remanded for further proceedings.

142
opinion grants it. There, the California Supreme Court, applying

Boyde v. California, 494 U.S. 370 (1990), had held that there was

no reasonable likelihood that the jury believed it was required to

disregard the petitioner’s mitigating evidence while applying the

jury instructions.4 Payton, 544 U.S. at 139. The Ninth Circuit,

concluding that the state court unreasonably erred, granted habeas

relief.5 Id. at 140. Stringently applying AEDPA’s deferential

standard of review, the Supreme Court reversed the Ninth Circuit.

Id. at 141–43. The Court held that, under AEDPA, “[e]ven on the

assumption that [the state court’s] conclusion was incorrect, it

was not unreasonable, and is therefore just the type of decision

that AEDPA shields on habeas review.” Id. at 143. Concurring,

Justice Breyer stated that, “In my view, this is a case in which

Congress’ instruction to defer to the reasonable conclusions of

4
The challenged instructions included the “factor (k)
instruction,” which is California’s version of a catch-all
instruction. “[I]t directed jurors to consider any other
circumstance which extenuates the gravity of the crime even though
it is not a legal excuse for the crime.” Payton, 544 U.S. at 137
(internal quotation marks and alteration omitted). Even though
called a “catch-all,” this instruction sometimes may act to
preclude the jury from considering relevant mitigating evidence.
See Belmontes v. Brown, 414 F.3d 1094, 1102 n.1 (9th Cir. 2005).
5
The state court had held that Payton’s mitigating evidence
(sincere commitment to God, involvement in prison ministry, calming
effect on other prisoners) of his post-crime behavior could be
considered within the jury instructions. The Ninth Circuit granted
habeas relief, believing that Supreme Court precedent upholding the
factor (k) instruction applied only to pre-crime evidence. Payton,
544 U.S. at 140.

143
state-court judges makes a critical difference.” Id. at 148

(Breyer, J., concurring).

Were I a California state judge, I would likely hold

that Payton’s penalty-phase proceedings violated the

Eighth Amendment. . . . [T]here might well have been a

reasonable likelihood that [the] jury interpreted [the

challenged jury instruction] in a way that prevent[ed] it

from considering constitutionally relevant mitigating

evidence. . . .

Nonetheless . . . [, f]or the reasons that the Court

discusses, I cannot say that the California Supreme Court

decision fails [AEDPA’s] deferential test.

Id. at 148–49 (fourth alteration in original) (internal quotation

marks omitted).

While Payton does not address the Texas special issues, it

nonetheless supports the proposition that, under AEDPA, federal

courts sitting in habeas review of state convictions must defer to

reasonable state court determinations regarding the

constitutionality of jury instructions. Where, as here, there is

no directly applicable Supreme Court precedent and the question is

so close, a federal court cannot conclude that the state court

unreasonably applied Supreme Court precedent. See Payton, 544 U.S.

at 140 (noting that the Ninth Circuit “cited no precedent of this

Court to support” its position that the state court acted contrary

144
to or unreasonably applied Supreme Court precedent). See also

Mitchell v. Esparza, 540 U.S. 12, 17 (2003) (“A federal court may

not overrule a state court for simply holding a view different from

its own, when the precedent from this Court is, at best,

ambiguous.”).6

Our circuit has spent considerable time and effort trying to

divine whether the jury was precluded from considering various

mitigating evidence within the confines of the special issues.

Such a close review of state court convictions is neither envisaged

nor permissible under the standard of review imposed by AEDPA.

Congress has limited the scope of our habeas review, and we must

accede. Under that Congressionally-mandated deferential review, I

simply fail to see how a majority of this court can hold

unequivocally that the state habeas court not just has erred

(certainly a debatable prospect) but has erred unreasonably so as

to merit federal habeas relief.

6
Though the majority opinion purports to apply AEDPA and not
merely disagree with the state habeas court decision, see Maj. Op.
at 24 & 35, the analysis and conclusion of the majority opinion
clearly show otherwise. The question is not whether there is a
reasonable likelihood that the jury was precluded from giving
consideration and effect to Nelson’s mitigating evidence, see Maj.
Op. at 2, 24, 29, 30, 33, & 41; rather, the question is whether it
was unreasonable for the state habeas court to hold that there was
not a reasonable likelihood that the jury was precluded from giving
consideration and effect to the mitigating evidence. This latter
question sets a substantially higher bar to relief.

145
PRISCILLA RICHMAN OWEN, Circuit Judge, with whom JOLLY and SMITH,

Circuit Judges, join dissenting:

The dissents of Chief Judge Jones and Judge Clement make

salient points. I write to emphasize the standard of review that

must be applied and that, given the state of the law when Nelson’s

conviction and sentence became final in 1994, the Texas court’s

application of United States Supreme Court precedent was not

“objectively unreasonable.”1 The Supreme Court has admonished that

in habeas review “the most important point is that an unreasonable

application of federal law is different from an incorrect

application of federal law.”2 The majority has failed to draw this

distinction. It was not objectively unreasonable to conclude that

Nelson’s mitigating evidence was distinguishable from the mental

retardation and low intelligence at issue in Penry v. Lynaugh

1
Williams v. Taylor, 529 U.S. 362, 409 (2000) (“Stated simply,
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.”); see also
Brown v. Payton, 544 U.S. 133, 147 (2005) (“Even were we to assume
the ‘“relevant state-court decision applied clearly established
federal law erroneously or incorrectly,”’ there is no basis for
further concluding that the application of our precedents was
‘objectively unreasonable.’”) (quoting Lockyer v. Andrade, 538 U.S.
63, 76 (2003) (quoting Williams, 529 U.S. at 411)) (internal
citations omitted).
2
Williams, 529 U.S. at 410.

146
(Penry I),3 Tennard v. Dretke,4 and Smith v. Texas,5 and was instead

more similar to the transient qualities of youth at issue in

Johnson v. Texas6 and Graham v. Collins.7

I

The Texas Court of Criminal Appeals affirmed Nelson’s sentence

on direct review in 1993, rejecting his argument that the special

issues submitted to the jury failed to permit adequate

consideration of mitigating evidence.8 That judgment became final

when the United States Supreme Court denied review in 1994.9

Nelson then initiated habeas corpus proceedings.

Habeas review in federal courts of state court proceedings is

governed by 28 U.S.C § 2254, and the inquiry before us today is

whether the state proceedings “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

3
492 U.S. 302 (1989).
4
542 U.S. 274 (2004).
5
543 U.S. 37 (2004).
6
509 U.S. 350 (1993).
7
506 U.S. 461 (1993).
8
Nelson v. State, 864 S.W.2d 496 (Tex. Crim. App. 1993), cert.
denied, 510 U.S. 1215 (1994). The portion of the Texas Court of
Criminal Appeals’s opinion addressing Nelson’s mitigating evidence
and the special issues submitted to the jury is unpublished.
9
510 U.S. at 1215.

147
United States.”10 The Supreme Court has held that the phrase

“clearly established Federal law, as determined by the Supreme

Court” means “the holdings, as opposed to the dicta, of this

Court’s decisions as of the time of the relevant state-court

decision.”11

At the time the Texas Court of Criminal Appeals affirmed the

judgment in Nelson’s direct appeal, the Supreme Court’s most recent

pronouncements regarding the Texas special issues submitted in

death penalty cases tried before 1991 were Graham v. Collins,12

which considered a habeas petition, and Johnson v. Texas,13 which

was a direct review of a death sentence. Both decisions

extensively surveyed the Supreme Court’s jurisprudence regarding

mitigating evidence and the Texas special issues under

consideration today. In both Graham and Johnson, the primary

10
28 U.S.C. § 2254(d)(1) (2000).
11
Williams v. Taylor, 529 U.S. 362, 412 (2000); see also id.
(“[W]hatever would qualify as an old rule under our Teague
jurisprudence will constitute ‘clearly established Federal law, as
determined by the Supreme Court of the United States.’”)
(referencing Teague v. Lane, 489 U.S. 288 (1989)).
12
506 U.S. 461 (1993).
13
509 U.S. 350 (1993). The Texas Court of Criminal Appeals
affirmed Nelson’s conviction and sentence on May 26, 1993, before
Johnson v. Texas issued, but the Texas court did not deny rehearing
until October 6, 1993, after Johnson had issued on June 24, 1993.

148
question was whether the special issues allowed juries to give

mitigating effect to a defendant’s youth.14

In Graham and Johnson, the Supreme Court discussed its

decision in Penry I, a habeas proceeding in which Penry presented

evidence indicating that he had a low IQ, had mild to moderate

mental retardation, and had been beaten and received multiple head

injuries at an early age.15 The Court held that the Texas special

issues did not allow the jury to give effect to all of Penry’s

mitigating evidence.16 Three issues were submitted to the jury, and

a “no” answer to any of them would have resulted in a life sentence

rather than the death penalty.17

The first special issue inquired if Penry acted “deliberately

and with the reasonable expectation that the death of the

deceased . . . would result.”18 The Supreme Court held that

assuming the jury “understood ‘deliberately’ to mean something more

than that Penry was guilty of ‘intentionally’ committing murder,

those jurors may still have been unable to give effect to Penry’s

mitigating evidence.”19 Penry’s mental retardation, while relevant

14
Graham, 506 U.S. at 463; Johnson, 509 U.S. at 352.
15
Penry v. Lynaugh, 492 U.S. 302, 307-09 (1989).
16
Id. at 328.
17
Id. at 310, 322-25.
18
Id. at 322.
19
Id.

149
to whether he was capable of acting “deliberately,” also “‘had

relevance to [his] moral culpability.’”20 The Supreme Court

concluded that because the first special issue did not “defin[e]

‘deliberately’ in a way that would clearly direct the jury to

consider Penry’s mitigating evidence as it bears on his personal

culpability,” the Supreme Court could not “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.”21 The same could be said of Nelson’s borderline

personality disorder.

The second special issue inquired “whether there is a

probability that the defendant would commit criminal acts of

violence that would constitute a continuing threat to society.”22

In Penry’s case, “one effect of his retardation [was] his inability

20
Id. (quoting Franklin v. Lynaugh, 487 U.S. 164, 185 (1988)
(plurality opinion)).
21
Id. at 323. The Supreme Court further reasoned:

Without such a special instruction, a juror who
believed that Penry’s retardation and background
diminished his moral culpability and made
imposition of the death penalty unwarranted would
be unable to give effect to that conclusion if the
juror also believed that Penry committed the crime
“deliberately.” 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.
22
Id.

150
to learn from his mistakes.”23 In Penry I, the Supreme Court

reasoned that Penry’s mental retardation was relevant to the future

dangerousness issue but “only as an aggravating factor because it

suggests a ‘yes’ answer to the question of future dangerousness.”24

The Court held, “The second special issue, therefore, did not

provide a vehicle for the jury to give mitigating effect to Penry’s

evidence of mental retardation and childhood abuse.”25

Subsequently, in Graham the Supreme Court emphasized that the

jury’s answer to the second special issue in Penry’s case could not

give effect to the mitigating aspects of his mental retardation and

abuse because “[a]lthough Penry’s evidence of mental impairment and

childhood abuse indeed had relevance to the ‘future dangerousness’

inquiry, its relevance was aggravating only.”26 The Graham decision

reasoned, “Penry’s evidence compelled an affirmative answer to that

[future dangerousness] inquiry, despite its mitigating

significance.”27 By contrast, in Graham, the defendant’s youth

“quite readily could have supported a negative answer.”28

23
Id.
24
Id.
25
Id. at 324.
26
Graham v. Collins, 506 U.S. 461, 473 (1993).
27
Id. at 475.
28
Id. at 475-76.

151
 The Supreme Court’s decision a few months later in Johnson

likewise draws a distinction between the type of evidence at issue

in Penry I and certain other categories of mitigating evidence.29

The Court re-confirmed that the constitutionality of jury

submissions in death penalty cases turns on “‘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.’”30 In making that

determination, the Johnson decision sets forth at least three

important, inter-related principles: (1) even if a juror might

view the evidence as both aggravating and mitigating, the Eighth

Amendment has been satisfied “[a]s long as the mitigating evidence

is within ‘the effective reach of a sentencer,’”31 (2) a state is

not required to allow a jury “to give effect to mitigating evidence

in every conceivable manner in which the evidence might be

relevant,”32 and (3) a state is permitted to structure consideration

of relevant mitigating evidence as long as the jury is allowed to

29
Johnson v. Texas, 509 U.S. 350, 368-70 (1993).
30
Id. at 367 (quoting Boyde v. California, 494 U.S. 370, 380
(1990)).
31
Id. at 368 (quoting Graham, 506 U.S. at 475-76).
32
Id. at 372.

152
give effect to that evidence through at least one vehicle in making

the sentencing decision.33

In Johnson, the Supreme Court expressly rejected the argument

“that the forward-looking perspective of the future dangerousness

inquiry did not allow the jury to take account of how petitioner’s

youth bore upon his personal culpability for the murder he

committed.”34 The Supreme Court reasoned that the “forward-looking

inquiry is not independent of an assessment of personal

culpability. It is both logical and fair for the jury to make its

determination of a defendant’s future dangerousness by asking the

extent to which youth influenced the defendant’s conduct.”35 The

Court also expressly rejected the related argument that the Texas

special issues did not permit the jury “to make a ‘reasoned moral

response’” to the defendant’s youth because the issue inquired only

about future dangerousness.36 The Court concluded that the use of

the term “continuing threat to society” in the future dangerousness

33
Id. at 370; see also id. at 373 (“To rule in petitioner’s
favor, we would have to require that a jury be instructed in a
manner that leaves it free to depart from the special issues in
every case. This would, of course, remove all power on the part of
the States to structure the consideration of mitigating evidence—a
result we have been consistent in rejecting.”).
34
Id. at 369.
35
Id.; see also Ayers v. Belmontes, 127 S.Ct. 469, 475 (2006)
(citing Johnson, 509 U.S. at 369, for the proposition that “the
‘forward-looking’ future-dangerousness inquiry ‘is not independent
of an assessment of personal culpability.’”).
36
Johnson, 509 U.S. at 370.

153
special issue “afford[ed] the jury room for independent judgment in

reaching its decision,” explaining, “Indeed, we cannot forget that

‘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.’”37

Perhaps most importantly, the Supreme Court held in Johnson

that a state may structure consideration of mitigating evidence and

that providing one vehicle through which to give effect to

mitigating evidence satisfies constitutional requirements.38 The

Court explained, “It is true that Texas has structured

consideration of the relevant qualities of petitioner’s youth, but

in so doing, the State still ‘allow[s] the jury to give effect to

[this] mitigating evidence in making the sentencing decision.’”39

A state is not required to provide more than one avenue for giving

effect to mitigating evidence: “Although Texas might have provided

other vehicles for consideration of petitioner’s youth, no

additional instruction beyond that given as to future dangerousness

37
Id. at 370-71 (quoting Franklin v. Lynaugh, 487 U.S. 164, 182
n.12 (1988) (plurality opinion)).
38
Id. at 370.
39
Id. (quoting Saffle v. Parks, 494 U.S. 484, 491 (1990)).

154
was required in order for the jury to be able to consider the

mitigating qualities of youth presented to it.”40

In answering the relevant question on direct review of a death

sentence, which is “whether the Texas special issues allowed

adequate consideration” of mitigating evidence,41 the Supreme Court

reiterated in Johnson 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.’”42 The Court found no such

likelihood with regard to a defendant’s youth. “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.”43

II

Against this backdrop, we must determine whether the Texas

court decided Nelson’s case “differently than [the Supreme] Court

has on a set of materially indistinguishable facts.”44 As noted,

40
Id.
41
Id. at 367.
42
Id. (quoting Boyde v. California, 494 U.S.370, 380 (1990)).
43
Id. at 370.
44
Williams v. Taylor, 529 U.S. 362, 413 (2000) (construing 28
U.S.C. § 2254(d)(1), which provides, “An application for a writ of
habeas corpus . . . shall not be granted . . . unless the

155
this is not a direct appeal; Nelson seeks a writ of habeas corpus.

“[A] federal habeas court making the ‘unreasonable application’

inquiry [under 28 U.S.C. § 2254(d)(1)] should ask whether the state

court’s application of clearly established federal law was

objectively unreasonable.”45 In light of Penry I, Graham, and

Johnson, it cannot be said that it would be objectively

unreasonable to conclude that Nelson’s mitigating evidence is

distinguishable from Penry’s evidence or is more comparable to

Graham’s and Johnson’s youth. Even if a court might conclude, as

the majority in this case does, that the Texas court incorrectly

applied federal law, that is not a basis for granting habeas

relief. Again, the Supreme Court has held that “the most important

point is that an unreasonable application of federal law is

different from an incorrect application of federal law.”46

Unlike mental retardation or low intelligence, which are

generally static conditions, the evidence regarding Nelson’s

borderline personality disorder is not solely aggravating with

adjudication of the claim . . . 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”); see also id. at 406 (“A state-court decision will
. . . be contrary to this Court’s clearly established precedent if
the state court confronts a set of facts that are materially
indistinguishable from a decision of this Court and nevertheless
arrives at a result different from our precedent.”).
45
Id. at 409.
46
Id. at 410.

156
regard to his future dangerousness. The majority opinion and Chief

Judge Jones’s dissent describe the expert testimony in some detail,

and I will not duplicate those discussions. The important point is

that although Nelson’s expert witness conceded that those suffering

from borderline personality disorder can be difficult to treat and

there was no guarantee Nelson’s treatment would be successful, the

expert opined that Nelson’s disorder was treatable with medication

and psychotherapy over a period of two to five years. I agree with

Judge Clement’s dissenting opinion that Nelson’s borderline

personality disorder falls somewhere on a continuum between Penry’s

mental retardation and Graham’s youth.47

The established law in Johnson and Graham is that the

attributes of youth place it in a different category than mental

retardation: “The relevance of youth as a mitigating factor

derives from the fact that the signature qualities of youth are

transient; as individuals mature, the impetuousness and

recklessness that may dominate in younger years can subside.”48 A

jury can give adequate effect to the mitigating aspects of youth in

answering the future dangerousness issue because the “forward-

looking inquiry is not independent of an assessment of personal

47
See Graham v. Collins, 506 U.S. 461, 475 (1993) (“The jury
was not forbidden to accept the suggestion of Graham’s lawyers that
his brief spasm of criminal activity in May 1981 was properly
viewed, in light of his youth, his background, and his character,
as an aberration that was not likely to be repeated.”).
48
Johnson, 509 U.S. at 368.

157
culpability. It is both logical and fair for the jury to make its

determination of a defendant’s future dangerousness by asking the

extent to which youth influenced the defendant’s conduct.”49 The

future dangerousness issue is adequate even though a jury is free

to conclude that youth did not influence the defendant’s conduct or

that the attributes of youth, such as impetuousness and

recklessness, will not subside as to this defendant. It was not

unreasonable for the Texas court to conclude that the same can be

said of the evidence regarding Nelson’s borderline personality

disorder and the prospects for its treatment. The jury may have

concluded that Nelson’s disorder was treatable, or that it was not,

just as juries may conclude that the attributes of youth are not

transient as to a particular defendant. A court conducting a

direct review of the Texas court’s decision to place the evidence

of Nelson’s borderline personality disorder in the same category as

youth might conclude that the Texas court erred, but it was not

unreasonable for the Texas court to treat Nelson’s evidence as

similar to evidence of youth, given the Supreme Court’s precedent.

The evidence also reflected that Nelson’s mother did not love

him and shunned him. Nelson’s expert testified that his mother’s

conduct likely contributed to or exacerbated Nelson’s borderline

personality disorder. To the extent Nelson’s abusive treatment

from his mother must be considered independently from his mental

49
Id. at 369.

158
condition, it is not unreasonable to conclude that this evidence,

as well as evidence regarding Nelson’s troubled relationships with

his brother and women and his inability to have a relationship with

his child born out of wedlock, is more similar to “Graham’s

evidence of transient upbringing and otherwise nonviolent

character”50 than it is to the harsh, physical abuse inflicted upon

Penry as a child.51 The Texas court did not unreasonably apply the

Supreme Court’s holding in Graham and Johnson that additional

instructions or an additional jury issue are not required simply

because mitigating evidence has some arguable relevance beyond the

special issues. The Supreme Court said in both Graham and Johnson:

[H]olding that a defendant is entitled to special
instructions whenever he can offer mitigating evidence
that has some arguable relevance beyond the special
issues . . . would be to require in all cases that a
fourth “special issue” be put to the jury: “‘Does any
mitigating evidence before you, whether or not relevant
to the above [three] questions, lead you to believe that
the death penalty should not be imposed?’”52

The Court observed that “[t]he first casualty of a holding [that

would require an additional issue whenever evidence had some

relevance beyond the special issues] would be Jurek. The

inevitable consequence of petitioner’s argument is that the Texas

50
Graham, 506 U.S. at 476.
51
Penry v. Lynaugh, 492 U.S. 302, 308-09 (1989).
52
Johnson, 509 U.S. at 372 (quoting Graham, 506 U.S. at 476
(quoting Franklin v. Lynaugh, 487 U.S. 164, 180 n. 10 (1988)
(plurality opinion))).

159
special issues system in almost every case would have to be

supplemented by a further instruction.”53 The Supreme Court held

that as long as “a jury [was] able to consider in some manner all

of a defendant’s relevant mitigating evidence,” a state was not

required to allow a jury “to give effect to mitigating evidence in

every conceivable manner in which the evidence might be relevant.”54

The Texas court was not unreasonable in applying this precedent.

Additionally, during closing arguments, the prosecutor twice

suggested that the jury might conclude that Nelson was not morally

culpable for the murder because of his mother’s or others’

treatment of him and urged the jurors not to do so.55 This

indicates it was unlikely the jury thought that it could not give

effect to evidence of childhood abuse in considering Nelson’s moral

culpability and answering the future dangerousness issue. As was

the case in Ayers v. Belmontes, “It is improbable the jurors

believed that the parties were engaging in an exercise in futility

53
Id. (referencing Jurek v. Texas, 428 U.S. 262 (1976)).
54
Id. (“In addition to overruling Jurek, accepting petitioner’s
arguments would entail an alteration of the rule of Lockett [v.
Ohio, 438 U.S. 586 (1978)] and Eddings [v. Oklahoma, 455 U.S. 104
(1982)].”).
55
The prosecutor argued, “You are going to hear some Billy,
Billy, Billy, Billy, and before this is all said and done, this
whole grizzly, horrible thing is going to be hung around the neck
of his mother,” and, “We live – like I say, we are going to hang
this, before it is over we are going to hang it around the neck of
some school teacher or some football coach. We are going to hang
this around the neck of everybody but him.”

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when respondent presented (and both counsel later discussed) his

mitigating evidence in open court.”56 At the very least, the record

indicates that the Texas court would not have been unreasonable in

concluding the jury could give effect to this evidence.

As to evidence of Nelson’s substance abuse, no one questions

that the deliberateness issue provided an adequate vehicle.

III

The Supreme Court’s post-1994 decisions in Penry v. Johnson

(Penry II),57 Tennard v. Dretke,58 and Smith v. Texas59 do not render

the Texas court’s application of established Supreme Court

precedent unreasonable. None of those decisions holds that

additional instructions or another issue is necessary when

mitigating evidence can be given effect in answering either the

“deliberately” special issue or the “future dangerousness” special

issue under pre-1991 Texas law.

In Penry II, Penry had been retried subsequent to Penry I, and

the trial court submitted a third issue, in addition to the

“deliberately” and “future dangerousness” issues.60 The Supreme

Court held that the third issue was subject to two possible

56
127 S. Ct. 469, 476 (2006).
57
532 U.S. 782 (2001).
58
542 U.S. 274 (2004).
59
543 U.S. 37 (2004).
60
Penry II, 532 U.S. at 786.

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interpretations, and that neither interpretation cured the

infirmity of the first two issues as applied to Penry’s evidence.61

The third issue either had no practical effect62 or essentially

directed the jury to change truthful “yes” answers to the first two

issues to “no.”63

In Penry II, in a “see also” cite, the Court quoted from

Justice O’Connor’s dissent in Johnson, noting in a parenthetical,

“‘[A] sentencer [must] be allowed to give full consideration and

full effect to mitigating circumstances’ (emphasis in original).”64

But in the very next sentence, the Court adhered to Penry I,

requiring only “a ‘vehicle for expressing its “reasoned moral

response” to that evidence in rendering its sentencing decision.’”65

The reference to “full effect” and “full consideration” cannot be

taken as a retraction of one of Johnson’s core holdings: “Although

Texas might have provided other vehicles for consideration of

petitioner’s [mitigating evidence], no additional instruction

beyond that given as to future dangerousness was required in order

61
Id. at 798.
62
Id.
63
Id. at 799.
64
Id. at 797 (quoting Johnson v. Texas, 509 U.S. 350, 381
(1993) (O’Connor, J., dissenting)).
65
Id. (quoting Penry v. Lynaugh, 492 U.S. 302, 328 (1989))
(emphasis added).

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for the jury to be able to consider the mitigating qualities of

youth presented to it.”66

In Tennard, the Supreme Court considered in some detail what

constitutes mitigating evidence, explaining that the threshold was

a low one in deciding if there was a mitigating aspect.67 The Court

rejected this circuit’s “uniquely severe permanent handicap” and

“nexus” tests and held “that reasonable jurists would find

debatable or wrong” the state court’s disposition of “Tennard’s

low-IQ-based Penry claim.”68

In Smith, the Supreme Court again quoted the passage from

Justice O’Connor’s dissenting opinion in Johnson that said a

sentencer must be allowed to give “‘full effect to mitigating

circumstances.’”69 At issue was a nullification question, similar

but not identical to the one submitted in Penry II,70 that

“‘essentially instructed [the jury] to return a false answer to a

special issue in order to avoid a death sentence.’”71 The Supreme

66
Johnson, 509 U.S. at 370.
67
Tennard v. Dretke, 542 U.S. 274, 282-89 (2004).
68
Id. at 289.
69
Smith v. Texas, 543 U.S. 37, 46 (2004) (quoting Johnson, 509
U.S. at 381 (O’Connor, J., dissenting)).
70
Penry v. Johnson, 532 U.S. 782, 797-98 (2001).
71
Smith, 543 U.S. at 48 (quoting Penry II, 532 U.S. at 801).

163
Court explained in Smith the import of its holdings in Tennard and

Penry II:

Rather, we held that the jury must be given an effective
vehicle with which to weigh mitigating evidence so long
as the defendant has met a “low threshold for relevance,”
which is satisfied by “‘evidence which tends logically to
prove or disprove some fact or circumstance which a
fact-finder could reasonably deem to have mitigating
value.’”72

The Court held in Smith that “the burden of proof on the State was

tied by law to findings of deliberateness and future dangerousness

that had little, if anything, to do with the mitigation evidence

petitioner presented.”73 Smith had a low IQ and was placed in

special education classes, indicating low intelligence, a condition

that was not transient or treatable.74 Similarly, in Tennard, the

defendant had an IQ of 67, indicating low intelligence.75 No

mitigating effect could be given to low intelligence through a

jury’s answer to the future dangerousness issue.76 It is not

unreasonable to conclude that Nelson’s borderline personality

disorder and potential treatment for that condition is

72
Id. at 44 (quoting Tennard, 542 U.S. at 284-85 (quoting McKoy
v. North Carolina, 494 U.S. 433, 440 (1990))) (internal quotation
omitted).
73
Id. at 48.
74
Id. at 41.
75
542 U.S. at 277.
76
Id. at 288-89.

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distinguishable from Smith’s and Tennard’s mitigating circumstances

in this regard.

Neither Tennard nor Smith purports to overrule the holding in

Johnson that a state is only required to provide one avenue for

giving effect to mitigating evidence, not multiple vehicles.77 A

“no” answer to the future dangerousness issue based on Nelson’s

mitigating evidence would have given full effect to that evidence.

To paraphrase Johnson, if any jurors believed that Nelson’s

borderline personality disorder was transient because it was

treatable and his condition made him less culpable for murder,

there is no reasonable likelihood that those jurors would have

deemed themselves foreclosed from considering that in evaluating

Nelson’s future dangerousness.78

* * * * *

The Texas court was not objectively unreasonable in applying

the Supreme Court’s established precedent to the facts presented.

It was not objectively unreasonable to conclude that evidence of

Nelson’s borderline personality disorder and the prospects for its

treatment was less similar to mental retardation79 and low

77
See Johnson v. Texas, 509 U.S. 350, 370 (1993).
78
See id.
79
See Penry v. Lynaugh, 492 U.S. 302, 322 (1989).

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intelligence80 and more similar to the transient qualities of

youth.81 Accordingly, I dissent.

80
See Smith v. Texas, 543 U.S. 37, 41 (2004); see also Tennard,
542 U.S. at 277.
81
See Johnson, 509 U.S. at 368; see also Graham v.Collins, 506
U.S. 461, 463-64 (1993).

166