Coble v. Quarterman

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
August 14, 2007
FIFTH CIRCUIT
Charles R. Fulbruge III
____________ Clerk
No. 01-50010
____________

BILLIE WAYNE COBLE,

Petitioner-Appellant,

versus

NATHANIEL QUARTERMAN, DIRECTOR, TEXAS
DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL
DIVISION,

Respondent-Appellee.

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

ON PETITION FOR REHEARING

Before JOLLY, GARZA, and STEWART, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

In Coble v. Dretke, 444 F.3d 345 (5th Cir. 2006), we affirmed the district court’s denial of

a writ of habeas corpus to petitioner Billie Wayne Coble on the grounds that he did not receive

ineffective assistance of counsel at his capital murder trial and that all of his mitigating evidence could

be given effect within the “special issue” interrogatories in the Texas capital sentencing instruction.

Coble filed petitions for panel rehearing and rehearing en banc, in which he challenged our holding
regarding the Texas special issues; he did not challenge our resolution of his ineffective assistance of

counsel claims. While his petitions were pending, our en banc court decided Nelson v. Quarterman,

472 F.3d 287 (5th Cir. 2006) (en banc), in which a majority held that, with respect to the Texas

special issues, the relevant inquiry under clearly established Supreme Court precedent 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.” Id. at 293. Shortly thereafter, the United States Supreme Court issued two decisions

dealing with the Texas special issues: Abdul-Kabir v. Quarterman, 127 S. Ct. 1654 (2007), and

Brewer v. Quarterman, 127 S. Ct. 1706 (2007). In those cases, the Supreme Court confirmed that

(1) its precedent “firmly established that sentencing juries must be able to give meaningful

consideration and effect to all mitigating evidence that might provide a basis for refusing to impose

the death penalty on a particular individual, notwithstanding the severity of his crime or his potential

to commit similar offenses in the future,” Abdul-Kabir, 127 S. Ct. at 1664, and (2) prior to Nelson,

our court had “mischaracterized the law as demanding only that [mitigating] evidence be given

‘sufficient mitigating effect,’ and [had] improperly equated ‘sufficient effect’ with ‘full effect,”’

Brewer, 127 S. Ct. at 1713. We asked the parties for additional briefing in light of these three cases.

Because we are persuaded that there was a reasonable likelihood that the Texas special issues

precluded the jury from giving meaningful consideration and effect to Coble’s mitigating evidence,

we conclude that the Texas Court of Criminal Appeals’ determination that the special issues were

constitutional as applied to Coble was an unreasonable application of clearly established federal law

as announced by the Supreme Court. Accordingly, Coble’s petition for rehearing is GRANTED. We

WITHDRAW the opinion issued on March 22, 2006 and reported at 444 F.3d 345, and substitute

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this opinion:

I

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

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

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

habeas relief.

Coble was convicted of the capital murders of his brother-in-law, father-in-law, and mother-

in-law. The facts of Coble’s crimes are set forth in the opinion of the Texas Court of Criminal

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

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

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

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

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

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

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

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

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

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

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

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

Id. at 196-97.

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

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

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

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

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

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

he had killed three people. Id.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

II

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

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

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

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

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

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

with respect to any claim that was adjudicated on the merits in State
court proceedings unless the adjudication of the claim ))
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.

28 U.S.C. § 2254(d). “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 [Coble’s] conviction became final” in 1994. Nelson

v. Quarterman, 472 F.3d 287, 293 (5th Cir. 2006) (en banc) (citing Williams v. Taylor, 529 U.S. 362,

405 (2000)). A state court decision is contrary to clearly established Supreme Court precedent if:

(1) “the state court applies a rule that contradicts the governing law set forth in [the Supreme

Court’s] cases,” or (2) “the state court confronts a set of facts that are materially indistinguishable

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

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Court] precedent.” Williams, 529 U.S. at 406. A state court decision is an unreasonable application

of clearly established Supreme Court precedent if the state court “correctly identifies the governing

legal rule but applies it unreasonably to the facts of a particular prisoner’s case.” Id. at 407-08. The

inquiry into unreasonableness is objective. Id. at 409-10. A state court’s incorrect application of

clearly established Supreme Court precedent is not enough to warrant federal habeas relief; in

addition, such an application must also be unreasonable. Id. at 410-12. The state court’s factual

findings are presumed to be correct, and the habeas petitioner has the burden of rebutting that

presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

III

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

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

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

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

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

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

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

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

at 689.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

1
Coble argues that these uncalled witnesses would have testified regarding Coble’s difficult
upbringing, his mother’s psychiatric problems, his stay in a state home, his Vietnam experiences, and
his positive performance as a father and worker. Coble’s sentencing witnesses testified about these
issues.

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

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

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

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

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

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

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

not objectively unreasonable.

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

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

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

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

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

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

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

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

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

devoted father and diligent worker who contributed to his community. Indeed, counsel presented a

coherent theory to support a life sentence: Coble committed a crime of passion, one which he likely

2
In order to sentence a convicted defendant to the death penalty, Texas law requires juries
to affirmatively answer two special issues. In this case, the second special issue given at Coble’s
sentencing was “Is there a reasonable probability that the Defendant, Billie Wayne Coble, will commit
criminal acts of violence that would constitute a continuing threat to society?”

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would not repeat. At its base, Coble’s current challenge is to the strategy employed by trial counsel.

Such a challenge does not establish ineffective assistance. See Yarborough v. Gentry, 540 U.S. 1,

5-6 (2003) (“[C]ounsel has wide latitude in deciding how best to represent a client, and deference to

counsel’s tactical decisions in his closing presentation is particularly important because of the broad

range of legitimate defense strategy at that stage. . . . Judicial review of a defense attorney’s

summation is therefore highly deferential))and doubly deferential when it is conducted through the

lens of federal habeas.”). Coble’s indictment of trial counsel’s cross-examination of the State’s expert

is equally meritless. Coble presented experts who testified that Coble would not be a threat and he

challenged the State’s expert on recidivism of “passion killers.” Coble’s desire to have a specific

defense theory presented does not amount to ineffective assistance on federal habeas review.

Johnson v. Cockrell, 301 F.3d 234, 239 (5th Cir. 2002) (quoting Strickland, 466 U.S. at 689)

(“[C]ourts must ‘indulge a strong presumption that counsel’s conduct falls within the wide range of

reasonable professional assistance.’”). We cannot say that the state habeas court’s decision was

objectively unreasonable.

Coble contends next that trial counsel rendered ineffective assistance during the

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

unreasonable.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

representation.”).

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

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

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

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

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

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

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

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

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

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

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

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

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

3
The four exhibits included: (1) a psychiatric report on Coble prepared by Dr. Ralph Hodges,
dated May 6, 1964, when Coble was 15 years old; (2) a Veteran’s Administration report of a medical
examination on Coble by a neuropsychiatrist performed in 1970; (3) a Veteran’s Administration rating

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

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

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

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

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

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

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

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

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

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

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

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

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

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

was objectively reasonable.

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

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

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

decision relating to Coble dated February 20, 1970; and (4) a clinical narrative relating to Coble dated
Novermber 22, 1967.
4
See TEX. R. EVID. 803(4) (statements made for purposes of medical diagnosis or treatment);
TEX. R. EVID. 803(6) (records of regularly conducted activity); and TEX. R. EVID. 803(16)
(authenticated documents over 20 years old).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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resolution of these claims was objectively unreasonable.

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

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

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

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

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

Coble’s cumulative error claim was objectively unreasonable.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

witnesses, but he does not explain what these witnesses would have offered separate and apart from

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

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

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

habeas decision was not contrary to or an unreasonable application of Williams.

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

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

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

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

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

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

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

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

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

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

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

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

5
Coble did not set forth his Wiggins argument until his reply brief. However, it is
understandable that Coble did not address Wiggins in earlier briefing before us or the district court
because the Supreme Court had not yet issued the opinion. Wiggins properly applies to the state
court’s resolution of Coble’s ineffective assistance claims because that decision was not “new law,”
but rather an application of Strickland. See Hamblin v. Mitchell, 354 F.3d 482, 487 (6th Cir. 2003).

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

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

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

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

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

to investigate social history in Wiggins.6

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

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

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

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

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

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

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

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

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

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

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

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

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

6
In addition, Wiggins’ unresearched background was appalling. Wiggins’ background
involved “physical torment, sexual molestation, [ ] repeated rape[,]” a period of homelessness, and
diminished mental capacities. Wiggins, 539 U.S. at 535. Coble is unable to describe any mitigation
evidence that was available, but not investigated.

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

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

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

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

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

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

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

Rompilla.

IV

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

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

of an effective vehicle to consider mitigating evidence in violation of the mandate in Penry I and

Penry II, thus violating the Sixth, Eighth, and Fourteenth Amendments. To impose a capital sentence

under the version of the Texas statute in force when Coble was tried, the jury had to answer two

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

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

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

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

continuing threat to society.”7

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

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

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

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

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

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

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

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

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

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

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

retried.

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

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

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

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

8
In its opinion, the Court restated the instruction:

You are instructed that when you deliberate on the questions posed
in the special issues, you are to consider mitigating circumstances, if
any, supported by the evidence presented in both phases of the trial,
whether presented by the state or the defendant. A mitigating
circumstance may include, but is not limited to, any aspect of the
defendant’s character and record or circumstances of the crime which
you believe could make a death sentence inappropriate in this case.
If you find that there are any mitigating circumstances in this case, you
must decide how much weight they deserve, if any, and therefore, give
effect and consideration to them in assessing the defendant’s personal
culpability at the time you answer the special issue. If you determine,

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

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

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

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

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

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

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

that given at Penry’s trial.10

when giving effect to the mitigating evidence, if any, that a life
sentence, as reflected by a negative finding to the issue under
consideration, rather than a death sentence, is an appropriate response
to the personal culpability of the defendant, a negative finding should
be given to one of the special issues.

Penry II, 532 U.S. at 789-90.
9
The Supreme Court again held in Smith v. Texas, 125 S. Ct. 400 (2004), that substantially
similar jury instructions as those provided in Penry II were constitutionally inadequate.
10
The State concedes this fact. In its entirety, the supplemental instruction given at Coble’s
trial, reads as follows:

You are instructed that when you deliberate on the questions posed
in the special issues, you are to consider the mitigating circumstances,
if any, supported by the evidence presented in both phases of the trial,
whether presented by the State or the Defendant. A mitigating
circumstance may include, but is not limited to, any aspect of the
defendant’s character and record or circumstances of the crime which
you believe could make a death sentence inappropriate in this case.
If you find that there are any mitigating circumstances in this case, you
must decide how much weight they deserve, and thereafter give effect
and consideration to them in assessing the defendant’s personal
culpability at the time you answer the special issue. If you determine,
when giving effect to the mitigating evidence, if any, that a life
sentence rather than a death sentence is an appropriate response to the

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 The TCCA nevertheless concluded that the special issues did not preclude the juryfrom giving

effect to Coble’s mitigating evidence and were therefore constitutional as applied to him. Coble

argues that the TCCA’s determination that the special issues provided the jury with an adequate

vehicle for giving consideration and effect to his mitigating evidence of mental illness and troubled

background was an unreasonable application of Penry. In order to grant relief on Coble’s Penry

claim, we must first determine whether his mitigating evidence of mental illness and troubled

background satisfied the “low threshold for relevance” articulated by the Supreme Court. Tennard

v. Dretke, 124 S. Ct. 2562, 2570 (2004).11 If so, we must determine whether there was a reasonable

likelihood that the jury applied the special issues in a manner that precluded it from giving meaningful

consideration and effect to all of Coble’s mitigating evidence. See Abdul-Kabir v. Quarterman, 127

S. Ct. 1654, 1664, 1668 n.14 (2007); Brewer v. Quarterman, 127 S. Ct. 1706, 1710, 1713 (2007);

Nelson, 472 F.3d at 293, 315-16.

A

In Tennard, the Supreme Court held that “a State cannot preclude the sentencer from

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

was involved with various youth programs over the years, that he had a good relationship with his

son, and that he got along well with co-workers. Coble also served as a section leader in the U.S.

Army reserves, and he offered evidence that he was well respected.

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

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

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

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

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

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

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

swings, which resulted in a loss of control on the day of the murders.12

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

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

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

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

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

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

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

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

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

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

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

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

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

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

12
Coble does not contend that his mental illness exempts him from the death penalty under
either Ford v. Wainwright, 477 U.S. 399 (1986) (holding that Eighth Amendment prohibits executing
the insane), or Atkins v. Virginia, 536 U.S. 304 (2002) (holding that Eighth Amendment prohibits
executing the mentally retarded).

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not be made until a person was eighteen years old.13 He concluded that Coble “was not a sociopath

then, and not a sociopath now.”14

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

Coble constitutes relevant mitigating evidence. All of Coble’s evidence is mitigating in the sense that

it might serve as a basis for a sentence less than death. See Tennard, 124 S. Ct. at 2570. Accordingly,

Coble’s evidence has satisfied the first prong in determining whether he is entitled to habeas relief on

his Penry claim.

B

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

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

California, 494 U.S. 370, 3770-78 (1998)). As the Supreme Court explained in Abdul-Kabir,

“sentencing juries must be able to give meaningful consideration and effect to all mitigating evidence

that might provide a basis for refusing to impose the death penalty on a particular individual,

notwithstanding the severity of his crime or his potential to commit similar offenses in the future.”

Abdul-Kabir, 127 S. Ct. at 1664 (emphasis added).15 This requirement is not satisfied when the jury

13
Dr. Hodges did not define the term “sociopath” nor did Dr. Grigson explain in his testimony
the difference between the current meaning of the term compared to its meaning in 1964.
14
To rebut the psychiatric testimony, the State presented Dr. Richard Coons who testified
that, based on Coble’s history of emotional instability and violence, there was a probability that he
would continue to be dangerous in the future. In making this determination, Coons relied heavily on
the 1964 report.
15
According to the State, the “meaningful effect” standard articulated by the Supreme Court
in Abdul-Kabir and Brewer differs from the “full effect” standard articulated by our en banc court in
Nelson. Compare Abdul-Kabir, 127 S. Ct. at 1664 (“[S]entencing juries must be able to give
meaningful consideration and effect to all mitigating evidence that might provide a basis for refusing
to impose the death penalty on a particular individual”) (emphasis added), with Nelson, 472 F.3d at

-24-
is unable to express a “reasoned moral response to evidence that has mitigating relevance beyond the

scope of the special issues.” Nelson, 472 F.3d at 293. “[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.” Id. Therefore, “when the defendant’s evidence may have meaningful relevance

to the defendant’s moral culpability ‘beyond the scope of the special issues,’” a special instruction is

required. Abdul-Kabir, 127 S. Ct. at 1668 n.14.

The question for us, then, is whether Coble’s mitigating evidence had meaningful mitigating

relevance beyond the scope of the two special issues, such that a special instruction was required.

We conclude that it did. Because there is a reasonable likelihood that the that jury was precluded

from giving full effect to Coble’s mitigating evidence, we hold that the TCCA’s determination to the

contrary was an unreasonable application of clearly established federal law as determined by the

Supreme Court.

1

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

298 (“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.”)
(emphasis in original). Therefore, the State argues, we are bound to apply the meaningful-effect rule
of Abdul-Kabir and Brewer rather than the full-effect standard of Nelson. We disagree with the
premise of the State’s argument. Regardless of the descriptor attached to it, the substance of the
standard articulated in Abdul-Kabir/Brewer and Nelson is the same))when deciding whether to
sentence a defendant to death, jurors must be able to give a reasoned moral response to evidence that
has meaningful mitigating relevance beyond its ability to negate the special issues, particularly
evidence which speaks to a defendant’s moral culpability. See Abdul-Kabir, 127 S. Ct. at 1668 n.14,
1669 n.16, 1670; Brewer, 127 S. Ct. at 1709, 1712-13; Nelson, 472 F.3d at 293, 303. Such evidence
must “be permitted its mitigating force beyond the scope of the special issues.” Abdul-Kabir, 127
S. Ct. at 1670.

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

another would result.”16 Although Coble’s evidence of mental illness and a troubled background may

have been relevant to the question of whether he acted deliberately, such that the jury may have been

able to give some effect to that evidence through the first special issue, the evidence also had

meaningful mitigating relevance beyond its tendency to disprove that Coble acted deliberately.

Specifically, “a reasonable juror could have concluded that, while the murder[s] w[ere] deliberate,

[Coble] was less morally culpable as a result of his [post-traumatic stress and bipolar disorders and

troubled childhood] than a murderer without such a mental illness and similar upbringing might have

been.” Nelson, 472 F.3d at 306. Because the deliberateness special issue did not enable the jury to

give effect to such a conclusion, the special issue did not provide the jury with a vehicle for

expressing its reasoned moral response to a “major mitigating thrust” of Coble’s evidence. Id.

(“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 jury 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.”).

2

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

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

continuing threat to society.” As with the first special issue, Coble’s evidence of mental illness and

16
In addition, the court instructed the jury that “‘deliberately’ has a meaning different and
distinct from the word ‘intentionally’ as that word was previously defined in the charge on guilt and
the word ‘deliberately’ as used in the first special issue means a manner of doing an act characterized
by or resulting from careful consideration, a conscious decision involving a thought process which
embraces more than mere will to engage in the conduct.”

-26-
troubled background may have had mitigating relevance to the question of whether Coble would pose

a future danger to society. With respect to his mental illness, there was at least some evidence

introduced at Coble’s trial that his post-traumatic stress and bipolar disorders were amenable to

treatment. Based on this evidence, the jury might have concluded that Coble, if properly treated,

would be less likely to commit criminal acts constituting a continuing threat to society. Similarly, the

jury might have reasoned that as Coble aged and became more chronologically removed from his

difficult childhood and traumatic experiences in Vietnam, his troubled background would exercise

a lesser degree of influence over his actions, thereby rendering him less of a future danger. In other

words, it is conceivable that the jury could have given some effect to Coble’s mitigating evidence

through the future dangerousness special issue.

It is equally conceivable, however, that, based on the evidence introduced at Coble’s trial, the

jury could have concluded that successful treatment of his mental illness was unlikely and that his

troubled past increased, rather than diminished, his potential for future violence. Despite concluding

that Coble’s mental illness and troubled background made him likely to be dangerous in the future,

the jury nonetheless might have believed that this same mitigating evidence rendered Coble less

morally culpable for the murders and, hence, deserving of a sentence less than death. Much like the

deliberateness special issue, the future dangerousness special issue would not have allowed the jury

to give effect to such a conclusion. See Nelson, 472 F.3d at 312 (“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.”). Thus, the future dangerousness

special issue also failed to provide the jury with a vehicle for expressing its reasoned moral response

-27-
to a major mitigating thrust of Coble’s evidence. Id. at 309 (“[B]ased 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.”).

3

“At the time [Coble’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.” Id. at 315-16. For the foregoing reasons, it is clear that

Coble’s evidence of mental illness and troubled background had meaningful mitigating relevance

beyond the scope of the two special issues. Although Coble’s evidence was relevant to the special

issues, and the jury may therefore have been able to give partial effect to that evidence in answering

the special issues, we conclude that there is a reasonable likelihood that the jury was unable to give

meaningful consideration and effect to a major mitigating thrust of Coble’s evidence))its tendency

to make him less morally culpable for his crimes))through the special issues. The TCCA’s holding

to the contrary was an unreasonable application of clearly established federal law as determined by

the Supreme Court. Accordingly, Coble is entitled to habeas relief on his Penry claim.

V

For the foregoing reasons, we AFFIRM the district court’s denial of habeas relief on Coble’s

claim that he was denied ineffective assistance of counsel at the guilt/innocense and sentencing phases

of his capital murder trial, but we REVERSE the district court’s denial of habeas relief on Coble’s

claim that the Texas special issues were unconstitutional as applied to him. Accordingly, we

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REMAND the case with instructions to grant a writ of habeas corpus based on this latter claim.

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