United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
July 18, 2005
FIFTH CIRCUIT
Charles R. Fulbruge III
____________ Clerk
No. 01-50010
____________
BILLIE WAYNE COBLE,
Petitioner-Appellant,
versus
DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,
Respondent-Appellee.
Appeal from the United States District Court
For the Western District of Texas
Before JOLLY, GARZA, and STEWART, Circuit Judges.
EMILIO M. GARZA, Circuit Judge:
Petitioner, Billie Wayne Coble (“Coble”), was convicted of capital murder in the state court
of Texas and sentenced to death. Based on a Certificate of Appealability (“COA”) on two issues, one
granted by the district court and one by this court, Coble appeals the district court’s denial of federal
habeas relief. We AFFIRM the district court’s judgment.
I
Coble was convicted of the capital murders of his brother-in-law, father-in-law, and mother-
in-law. The facts of Coble’s crimes are set forth in the opinion of the Texas Court of Criminal
Appeals (“TCCA”) disposing of Coble’s direct appeal.
Coble was having marital problems and separated from his wife, Karen Vicha, not long before
the murders. Coble kidnaped Karen Vicha at knife-point. He attempted to convince her not to
divorce him, but eventually released her unharmed. Coble v. State, 871 S.W.2d 192, 195-96 (Tex.
Crim. App. 1993) (en banc). Several weeks later, Coble was seen driving around the area where
Karen Vicha and her parents lived. Id. at 196. That afternoon, he was waiting at his wife’s house
when her daughters returned from school. Coble handcuffed and tied up her three children and one
of their cousins. Id. Next, Coble cut the phone lines to the house and went down the street to the
house of his brother-in-law, Bobby Vicha. Coble and Bobby Vicha struggled, and Coble ultimately
shot Bobby Vicha in the neck. Id. at 196-97 & n.6. He returned to Karen Vicha’s house for a period
of time and then went across the street to the Vicha family home. Coble fatally shot Karen Vicha’s
parents, Zelda Vicha and Robert Vicha. He cut t he phone lines to the Vicha family home as well.
Id. at 196-97.
When Karen Vicha arrived home from work, Coble was waiting for her. Id. at 197. He
admitted to killing her parents and brother and told her that Bobby Vicha had shot him. He then
handcuffed her and drove her out to a rural area in her car. Karen Vicha later testified that Coble
assaulted her during the drive. Coble was eventually apprehended after a brief high-speed pursuit,
which ended when Coble crashed into a parked car. At the hospital where Coble and Karen Vicha
were taken for treatment, Coble spontaneously told various hospital personnel and police officers that
he had killed three people. Id.
Coble was subsequently convicted of capital murder. At the close of the penalty phase
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evidence, the jury answered the special issues in the affirmative and the judge sentenced Coble to
death. His direct appeal was affirmed by the TCCA, and the Supreme Court denied his petition for
a writ of certiorari. Id. at 208, cert. denied, Coble v. Texas, 513 U.S. 829 (1994).
Coble filed an application for a state writ of habeas corpus, alleging twenty-six claims for
relief. The trial court held an evidentiary hearing on five of these claims, but recommended that relief
be denied. The TCCA agreed, adopted the trial court’s findings of fact and conclusions of law, and
denied relief in an unpublished order. Ex parte Coble, No. 39,707-01 (Tex. Crim. App. 1999).
Coble then applied for federal habeas relief, and the district court appointed counsel. Coble
filed his habeas petition, alleging twenty-five claims, and the district court stayed his execution
pending resolution of the petition. The district court denied Coble’s request for an evidentiary
hearing and denied the writ. The district court did, however, grant COA on the issue of ineffective
assistance of counsel. Coble then petitioned for COA from this court on eleven additional grounds.
We granted COA on the issue of whether the “special issue” interrogatories in the Texas capital
sentencing instruction precluded effective consideration of Coble’s mitigating evidence in violation
of the mandates of Penry v. Lynaugh, 492 U.S. 302 (1989) (“Penry I”), and Penry v. Johnson, 532
U.S. 782 (2001) (“Penry II”). Coble v. Cockrell, 80 Fed. Appx. 301 (5th Cir. 2003).
II
“In a habeas corpus appeal, we review the district court’s findings of fact for clear error and
review its conclusions of law de novo, applying the same standard of review to the state court’s
decision as the district court.” Thompson v. Cain, 161 F.3d 802, 805 (5th Cir. 1998). Because Coble
filed his federal habeas petition after t he effective date of the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”), the district court’s federal habeas review was governed by AEDPA.
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Under AEDPA, habeas relief is not available to a state prisoner
with respect to any claim that was adjudicated on the merits in State
court proceedings unless the adjudication of the claim ))
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.
28 U.S.C. § 2254(d). A state court decision is “contrary to . . . clearly established Federal law, as
determined by the Supreme Court” if: (1) “the state court applies a rule that contradicts the governing
law set forth in [the Supreme Court’s] cases,” or (2) “the state court confronts a set of facts that are
materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result
different from [Supreme Court] precedent.” Williams v. Taylor, 529 U.S. 362, 406 (2000). A state
court decision is an unreasonable application of clearly established Supreme Court precedent if the
state court “correctly identifies the governing legal rule but applies it unreasonably to the facts of a
particular prisoner’s case.” Id. at 407-08. The inquiry into unreasonableness is objective. Id. at
409-10. A state court’s incorrect application of clearly established Supreme Court precedent is not
enough to warrant federal habeas relief; in addition, such an application must also be unreasonable.
Id. at 410-12. The state court’s factual findings are presumed to be correct, and the habeas petitioner
has the burden of rebutting that presumption by clear and convincing evidence. 28 U.S.C. §
2254(e)(1).
III
Coble makes multiple ineffective assistance of counsel arguments. These claims are governed
by the familiar standards of Strickland v. Washington, 466 U.S. 668 (1984). Coble must establish:
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(1) “that counsel’s representation fell below an objective standard of reasonableness” and (2) that the
deficient representation caused prejudice, which requires a showing that there is a “reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been
different.” Williams, 529 U.S. at 390-91 (quoting Strickland, 466 U.S. at 688, 694). Our scrutiny
of counsel’s performance is “highly deferential” and there is a “strong presumption” that any alleged
deficiency “falls within the wide range of reasonable professional assistance.” Strickland, 466 U.S.
at 689.
Coble claims trial counsel did not adequately prepare for the sentencing phase of trial because
they failed to interview and prepare the witnesses who testified at trial. In the cases cited by Coble,
trial counsel failed to conduct any investigation of witnesses who might have provided alibis or who
were eyewitnesses. See, e.g., Bryant v. Scott, 28 F.3d 1411, 1418 (5th Cir. 1994) (“[Counsel’s]
complete failure to investigate alibi witnesses fell below the standard of a reasonably competent
attorney practicing under prevailing professional norms.”). See also Rompilla v. Beard, 125 S.Ct.
2456 (2005) (counsel provided ineffective assistance by failing to examine a file on defendant’s prior
convictions at sentencing phase of capital murder trial despite knowing the state’s strategy was to
emphasize defendant’s violent character). In this case, Coble concedes that trial counsel’s
professional investigator interviewed all of the witnesses prior to their testimony. Furthermore, even
assuming counsel failed to fully prepare these witnesses, Coble only argues that these witnesses would
have been “more effective” if they had been better prepared, which does not come close to suggesting
that “but for counsel’s errors, the result of the proceeding would have been different.” Coble also
alleges that trial counsel failed to call favorable witnesses to testify. “Complaints of uncalled
witnesses are not favored, because the presentation of testimonial evidence is a matter of trial strategy
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and because allegations of what a witness would have testified are largely speculative.” Boyd v.
Estelle, 661 F.2d 388, 390 (5th Cir. 1981) (quoting Buckelew v. United States, 575 F.2d 515, 521
(5th Cir. 1978)). Coble has not established what information these witnesses would have provided.
Based on what can be gleaned from his briefs, these witnesses would have presented testimony
already provided by other witnesses.1 Counsel’s decision not to present cumulative testimony does
not constitute ineffective assistance. Murray v. Maggio, 736 F.2d 279, 282 (5th Cir. 1984). Finally,
Coble alleges that counsel was ineffective because they only conducted two interviews of him while
he was awaiting trial in prison. There is no support for this assertion in the record. Sheila Thun, a
deputy of the Sheriff’s office who worked in the jail and was responsible for keeping jail records,
testified that attorney visitations are not recorded in the same manner as lay visitations. Attorneys
were simply required to sign a card that was subsequently destroyed. Coble’s trial counsel, Hoagie
Karels, also testified that it was not unusual for him to see a client in jail without signing in and that
jail visitation records indicating no visits to Coble would be inaccurate. Karels testified that jail-based
meetings with Coble occurred whenever necessary and that meetings were also conducted in the
courtroom. Based on the information before the state habeas court, its denial of habeas relief was
not objectively unreasonable.
Coble also argues that trial counsel failed to present a coherent theory regarding mitigation
evidence in order to persuade the jury to answer “no” to the second special issue question.2 Coble
1
Coble argues that these uncalled witnesses would have testified regarding Coble’s difficult
upbringing, his mother’s psychiatric problems, his stay in a state home, his Vietnam experiences, and
his positive performance as a father and worker. Coble’s sentencing witnesses testified about these
issues.
2
In order to sentence a convicted defendant to the death penalty, Texas law requires juries to
affirmatively answer two special issues. In this case, the second special issue given at Coble’s
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argues that counsel’s closing argument was ineffective, counsel ineffectively cross-examined the
State’s expert on the point of future dangerousness, and counsel should have presented a statistical
theory related to whether Coble, as an older man with an extended prison term, represented a
continuing threat. Many of the factors that make up this “coherent theory” were presented at trial.
For example, counsel presented experts who testified that Coble’s actions were impulsive, that he
suffered from psychiatric problems, and that he would likely not be a repeat offender. In addition,
witnesses testified that Coble had a difficult childhood, tragic experiences in Vietnam, but was a
devoted father, a diligent worker, and that he contributed to his community. Indeed, counsel
presented a coherent theory to support a life sentence: Coble committed a crime of passion, one
which he likely would not repeat. At its base, Coble’s current challenge is to the strategy employed
by trial counsel. Such a challenge does not establish ineffective assistance. See Yarborough v.
Gentry, 540 U.S. 1, 5-6 (2003) (“[C]o unsel has wide latitude in deciding how best to represent a
client, and deference to counsel’s tactical decisions in his closing presentation is particularly important
because o f the broad range of legitimate defense strategy at that stage. . . . Judicial review of a
defense attorney’s summation is therefore highly deferential))and doubly deferential when it is
conducted through the lens of federal habeas.”). Coble’s indictment of trial counsel’s cross-
examination of the State’s expert is equally meritless. Coble presented experts who testified that
Coble would not be a threat and he challenged the State’s expert on recidivism of “passion killers.”
Coble’s desire to have a specific defense theory presented does not amount to ineffective assistance
on federal habeas review. Johnson v. Cockrell, 301 F.3d 234, 239 (5th Cir. 2002) (quoting
sentencing was “Is there a reasonable probability that the Defendant, Billie Wayne Coble, will commit
criminal acts of violence that would constitute a continuing threat to society?”
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Strickland, 466 U.S. at 689) (“[C]ourts must ‘indulge a strong presumption that counsel’s conduct
falls within the wide range of reasonable professional assistance.’”). We cannot say that the state
habeas court’s decision was objectively unreasonable.
Coble contends next that trial counsel rendered ineffective assistance during the
guilt/innocence phase of the trial by failing to construct a viable insanity or diminished capacity
defense. Coble argues that evidence of his mental state, which was extensively developed at
sentencing, should have instead been presented at the guilt/innocence phase of trial. In this case, the
trial court denied a defense request for an insanity instruction. Trial counsel testified before the state
habeas court that the possibility of an insanity defense was investigated. Trial counsel also testified
that no expert would support the insanity defense. Coble offered no evidence to the state habeas
court that he was insane at the time of the murders. Trial counsel investigated the possibility of
presenting an insanity defense and opted to hold the evidence until the sentencing phase of trial.
Thus, counsel was not ineffective for failing to present an insanity defense at the guilt/innocent phase
of trial since no experts would support the defense. See Wheat v. Johnson, 238 F.3d 357, 363 (5th
Cir. 2001); Crane v. Johnson, 178 F.3d 309, 313-14 (5th Cir. 1999); Williams v. Cain, 125 F.3d 269,
278-79 (5th Cir. 1997) (“failure to present . . . evidence would not constitute ‘deficient’ performance
within the meaning of Strickland if . . . [counsel] could have concluded, for tactical reasons, that
attempting to present such evidence would be unwise.”). In addition, counsel was not ineffective for
failing to present a diminished capacity defense because diminished capacity is not cognizable in
Texas. See, e.g., Jackson v. State, 115 S.W.3d 326, 328 (Tex. App. )) Dallas 2003). We cannot
say that the state habeas court’s decision was objectively unreasonable.
Coble also asserts that trial counsel provided ineffective assistance for failing to object to the
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prosecutor’s improper comments during closing arguments. The prosecutor described Coble as “a
cold-blooded, merciless, remorseless killer” and Coble argues that “remorseless” refers to Coble’s
failure to testify at trial. However, the prosecutor never referenced Coble’s failure to testify and there
was evidence presented at trial that, immediately following the murders, Coble made comments that
indicated his lack of remorse. Without some indication that the prosecutor was referring to Coble’s
failure to testify, rather than Coble’s comments indicating a lack of remorse, this argument is
meritless. See Rivera v. Collins, 934 F.2d 658, 661 (5th Cir. 1991) (“A statement by a district
attorney is not manifestly intended to comment on the defendant’s silence when there is another
plausible explanation.”). We cannot say that the state habeas court’s decision was objectively
unreasonable.
Coble contends next that he received ineffective assistance of counsel because his trial counsel
allowed a defense expert, Dr. Stephen Mark, to testify that Coble would likely be a danger in the
future unless he was medicated. Dr. Mark, a psychiatrist, testifed at trial that he examined Coble on
more than one occasion and found that he was a violent and suicidal person due to the depression
caused by his post-traumatic stress disorder and bipolar disorder. In his testimony, Dr. Mark stated
that Coble’s psychiatric disorders and his unique history of separation from his mother and previous
wives caused a total loss of control. Dr. Mark did admit that timely hospitalization and treatment
with mood-stabilizing drugs could have prevented the murders and that Coble’s psychiatric disorders
could be controlled by medication. Coble points to evidence presented to the state habeas court that
indicated his attorneys and expert disagreed over whether the expert informed the attorneys prior to
trial regarding his opinion of Coble’s future dangerousness. According to the affidavits of Coble’s
counsel, Ken Ables and Hoagie Karels, they believed that Dr. Mark would testify at trial that Coble
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would not be a future danger. Ables and Karels acknowledged that they were surprised by Dr.
Mark’s trial testimony and that the defense would not have called him as a witness had they known
what Dr. Mark’s testimony would be on the stand. Coble points to Dr. Mark’s affidavit in the state
habeas hearing that asserts he discussed the case with Ables on at least six occasions. Dr. Mark
remarked that the attorneys should not have been surprised by his testimony that Coble might be a
future danger if left untreated, therefore making his testimony more favorable to the prosecution.
Coble argues that the presentation of this unfavorable expert testimony negated the effectiveness of
his defense. The state habeas court concluded that “at most there was a mis-communication
concerning the content of [Dr. Mark’s] testimony, or a mis-comprehension of the substance of his
testimony as it pertained to the issue of future dangerousness and mitigation.” The state habeas court
was thus presented with two conflicting stories regarding the communication between Coble’s
counsel and Dr. Mark. The court believed Coble’s counsel that they expected Dr. Mark to testify
favorably for their client, not that they submitted the expert despite being aware of the damaging
nature of his testimony. Therefore, the state habeas court concluded that counsel’s performance was
not ineffective. While the wisdom of trial counsel’s decision to submit the expert is debatable, the
state court’s denial of habeas relief was not unreasonable. See Emery v. Johnson, 139 F.3d 191, 197
(5th Cir. 1997) (“The Sixth Amendment does not guarantee criminal defendants the right to error-free
representation.”).
Furthermore, even assuming that trial counsel’s performance fell below an objective standard
of reasonableness, Coble does not establish that the result of the proceedings would have been
different, as the habeas court also found that there was no prejudice. First, Dr. Mark’s expert
testimony was not that Coble was absolutely a future danger, but rather that, left untreated, he was
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a future danger. Second, other evidence suggested that Coble would be a future danger, including
the State’s expert who testified that Coble constituted a future danger, the horrific nature of the
murders, and testimony that Coble was aggressive and violent towards women in the years before the
murders. See Little v. Johnson, 162 F.3d 855, 860-61 (5th Cir. 1998) (“Deficient performance is
prejudicial only upon a showing that but for counsel’s errors, there is a reasonable probability that
the ultimate result would have been different and that confidence in the reliability of the verdict is
undermined.”). Accordingly, we find the state habeas court’s decision objectively reasonable.
Coble also argues trial counsel was ineffective for admitting into evidence psychiatric reports
at the penalty phase which suggested he was a future danger.3 Coble asserts that trial counsel could
have prevented any State attempt to introduce these exhibits because they violated the Confrontation
Clause of the Sixth Amendment. However, each of the exhibits that trial counsel introduced satisfied
an exception to the hearsay rule,4 and thus met the requirements of the Confrontation Clause. See
Lilly v. Virginia, 527 U.S. 116, 124-25 (1999) (hearsay evidence does not offend the Confrontation
Clause where the evidence falls within a firmly rooted hearsay exception); White v. Illinois, 502 U.S.
346, 356 (1992). Although the Supreme Court in Crawford v. Washington, 541 U.S. 36, 68-69
(2004), held that “[w]here testimonial statements are at issue, the only indicium of reliability sufficient
to satisfy constitutional demands is . . . co nfrontation,” none of the exhibits submitted during the
3
The four exhibits included: (1) a psychiatric report on Coble prepared by Dr. Ralph Hodges,
dated May 6, 1964, when Coble was 15 years old; (2) a Veteran’s Administration report of a medical
examination on Coble by a neuropsychiatrist performed in 1970; (3) a Veteran’s Administration rating
decision relating to Coble dated February 20, 1970; and (4) a clinical narrative relating to Coble dated
Novermber 22, 1967.
4
See TEX. R. EVID. 803(4) (statements made for purposes of medical diagnosis or treatment);
TEX. R. EVID. 803(6) (records of regularly conducted activity); and TEX. R. EVID. 803(16)
(authenticated documents over 20 years old).
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penalty phase of trial that Coble contests were testimonial statements, as discussed in Crawford. 541
U.S. at 51-53. Trial counsel’s decision to admit these damaging documents before the State was able
to introduce them, and soften their potential damage, is a reasonable trial strategy and will not be
second guessed. See Yohey v. Collins, 985 F.2d 222, 228 (5th Cir. 1993) (“Given the almost infinite
variety of possible trial techniques and tactics available to counsel, this Circuit is careful not to second
guess legitimate strategic choices.”). Therefore the state habeas court’s finding regarding this claim
was objectively reasonable.
Coble asserts next that trial counsel was ineffective for admitting a 1964 psychiatric report
from a doctor’s consultation with Coble when he resided at a state home at the age of fifteen. In the
report, Coble admitted to several illegal actions. These extraneous offenses were then presented to
the jury when the report was introduced as evidence by trial counsel. Coble contends that the state
report violated his Fifth Amendment right to self-incrimination at the time it was taken and that the
admission of the report at the penalty phase of his capital murder trial violated his Fifth and Sixth
Amendment rights, as articulated in Estelle v. Smith, 451 U.S. 454, 462-63 (1981). The Supreme
Court held in Estelle v. Smith that the state’s use, during the penalty phase of a capital trial, of the
testimony of a psychiatrist who performed a court-ordered competency examination on the defendant,
violated the defendant ’s Fifth Amendment right since the defendant was not warned that the
statements could be used during the penalty phase. We considered and rejected these underlying
claims in Coble’s COA application. We found the district court’s analysis persuasive, as well as
finding that any Estelle v. Smith violation was harmless. Coble v. Cockrell, 80 Fed.Appx 301, 312
(5th Cir. 2003). In addition, Coble’s claim that the report violated his Fifth Amendment rights in
1964 is meritless because the psychiatric consultation was not a custodial interrogation. See Miranda
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v. Arizona, 384 U.S. 436 (1966) (conditioning the admissibility at trial of any custodial confession
on warning a suspect of his rights). Coble’s statements were simply for the purpose of medical and
psychiatric diagnosis. Unlike the defendant in Estelle v. Smith, Coble was not “faced with a phase
of the adversary system,” but was “in the presence of [a] perso[n] acting solely in his interest.”
Estelle, 451 U.S. 467-69. Therefore, the report did not violate his Fifth Amendment right. In
addition, our precedent holds that “[i]f a defendant requests an examination on the issue of future
dangerousness or presents psychiatric evidence at trial, the defendant may be deemed to have waived
the fifth amendment privilege.” Vanderbilt v. Collins, 994 F.2d 189, 196 (5th Cir. 1993). In this
case, Coble’s trial counsel made a strategic decision to admit the 1964 report, before the prosecution,
to soften the blow in the minds of the jury. Coble does not establish that the state habeas court’s
resolution of these claims was objectively unreasonable.
Coble claims that cumulative error merits habeas relief. Federal habeas relief is only available
for cumulative errors that are of a constitutional dimension. Livingston v. Johnson, 107 F.3d 297,
309 (5th Cir. 1997); Yohey, 985 F.2d at 229. As previously discussed, none of Coble’s ineffective
assistance claims establish ineffective assistance under Strickland. Coble has not identified errors of
constitutional dimension. Accordingly, we cannot say that the state habeas court’s rejection of
Coble’s cumulative error claim was objectively unreasonable.
Coble argues that the facts in his case are indistinguishable from the facts in Williams v.
Taylor, 529 U.S. 362 (2000), which held that petitioner was denied effective assistance of counsel
when his attorneys failed to investigate and present substantial mitigating evidence during the
sentencing phase of his capital murder trial. However, there are clear differences between the
performance of Coble’s counsel at trial and the performance of Williams’ counsel. In Williams,
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counsel only prepared for the guilt phase a week before trial, failed to investigate mitigating evidence,
failed to introduce evidence that Williams was “borderline mentally retarded,” failed to investigate
positive evidence regarding Williams’ trustworthiness, and failed to contact a favorable witness. Id.
at 396. The mitigation evidence that Williams’ counsel presented was weak, consisting only of the
testimony of three relatives who stated that Williams was “a nice boy,” and the tape recorded
statement of a psychiatrist. Id. at 369. Coble’s counsel produced a significant number of witnesses
who testified regarding his background. These witnesses testified regarding Coble’s mother’s
psychiatric disorders, his time in a state home, his experience in Vietnam, his marriage difficulties, and
positive factors related to his work and his children. Counsel also presented two psychiatric expert
witnesses who discussed Coble’s mental history. Coble concedes there was some investigation of his
background, but argues there should have been more. Coble offers no explanation of what mitigating
evidence further investigation might have revealed. Coble asserts that his trial counsel failed to call
witnesses, but he does not explain what these witnesses would have offered distinct from the
mitigation evidence that was presented. Coble’s case is easily distinguishable from Williams’ where
trial counsel failed to uncover and present evidence relating to Williams’ “nightmarish childhood” and
that he was “borderline mentally retarded.” Williams, 529 U.S. at 395-96. The state habeas decision
was not contrary to or an unreasonable application of Williams.
Similarly, Coble contends that the state court’s denial of habeas relief was contrary to clearly
established federal law because the set of facts in Coble’s case is materially indistinguishable from
those in Wiggins v. Smith, 539 U.S. 510 (2003), where the Court determined that counsel was
ineffective in not investigating petitioner’s life history for mitigating evidence beyond the presentence
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investigation report and the department of social services records.5 Despite Coble’s protests to the
contrary, the facts in Wiggins are clearly distinguishable from the facts in the instant case. The
Wiggins Court stressed that “[d]uring the proceedings themselves . . . counsel introduced no evidence
of Wiggins’ life history.” 539 U.S. at 515. The failure to present this evidence was compounded by
the fact that Wiggins’ counsel failed to investigate Wiggins’ background and never attempted to
compile his social history. Id. at 523 (“[W]e focus on whether the investigation supporting counsel’s
decision not to introduce mitigating evidence of Wiggins’ background was itself reasonable.”)
(emphasis in original). Unlike in Wiggins, Coble’s attorneys not only investigated his background,
they also offered a mitigation case. In Wiggins, the Supreme Court found ineffective assistance of
counsel because it was unreasonable to make the decision not to investigate. Here, there is no
question that Coble’s attorneys investigated his background. At most, Coble is challenging the
strategy employed by trial counsel, arguing that witnesses should have been better prepared and that
more witnesses should have been proffered. Coble’s challenge is measurably distinct from the failure
to investigate social history in Wiggins.6
In sum, Coble’s attempts to analogize Williams and Wiggins fail because counsel is not
required to “investigate every conceivable line of mitigating evidence no matter how unlikely the
5
Coble did not set forth his Wiggins argument until his reply brief. However, it is
understandable that Coble did not address Wiggins in earlier briefing before us or the district court
because the Supreme Court had not yet issued the opinion. Wiggins properly applies to the state
court’s resolution of Coble’s ineffective assistance claims because that decision was not “new law,”
but rather an application of Strickland. See Hamblin v. Mitchell, 354 F.3d 482, 487 (6th Cir. 2003).
6
In addition, Wiggins’ unresearched background was appalling. Wiggins’ background
involved “physical torment, sexual molestation, [ ] repeated rape[,]” a period of homelessness, and
diminished mental capacities. Wiggins, 539 U.S. at 535. Coble is unable to describe any mitigation
evidence that was available, but not investigated.
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effort would be to assist the defendant at sentencing.” Wiggins, 539 U.S. at 533.
We also recognize the Supreme Court’s recent decision in Rompilla v. Beard, in which the
Court held “that even when a capital defendant’s family members and the defendant himself have
suggested that no mitigating evidence is available, his lawyer is bound to make reasonable efforts to
obtain and review material that counsel knows the prosecution will probably rely on as evidence of
aggravation at the sentencing phase of trial.” 125 S.Ct. 2456, 2460 (2005). Counsel for Rompilla
knew the prosecution’s sentencing strategy))emphasizing his violent character by introducing past
felony convictions involving the use or threat of violence))yet, counsel failed to make reasonable
efforts to obtain mitigation evidence, or even examine the file on Rompilla’s prior convictions. As
discussed supra, Coble fails to demonstrate what additional mitigating evidence further investigation
by his counsel might have revealed. The Court even distinguished the type of argument presented
by Coble from that made by Rompilla, stating that “[q]uestioning a few more family members and
searching for old records can promise less than looking for a needle in a haystack, when a lawyer truly
has reason to doubt that there is any needle there. But looking at a file the prosecution says it will
use is a sure bet: whatever may be in that file is going to tell defense counsel something about what
the prosecution can produce.” Id. at 2467. Coble simply argues that his counsel should have called
additional witnesses that would have testified regarding the same issues already discussed by other
witnesses. The efforts of Coble’s counsel are easily distinguishable from counsel’s performance in
Rompilla.
IV
Coble argues that the jury instructions, specifically the Texas “special issue” interrogatories,
submitted during the punishment phase of his capital murder trial, deprived the jury of an effective
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vehicle to consider mitigating evidence in violation of the mandate in Penry I and Penry II, thus
violating the Sixth, Eighth, and Fourteenth Amendments. Under the version of the Texas statute in
force when Coble was tried, to impose a capital sentence, the jury had to answer two questions in the
affirmative. The first special issue interrogatory addressed whether the defendant had acted
“deliberately and with the reasonable expectation that the death of the deceaseds or another would
result.” The second special issue question instructed the jury to consider “whether there is a
probability that the defendant would commit criminal acts of violence that would constitute a
continuing threat to society.”7
Coble’s trial was held between the Supreme Court’s decisions in Penry I and Penry II. In
Penry I, the Court held that the first two “special issue” interrogatories in the Texas capital
sentencing instructions, though facially valid, failed to satisfy the constitutional requirement that a
capital defendant be able to present and have the jury fairly consider mitigating evidence in certain
situations. 492 U.S. at 315, 328. After Penry I, Texas trial courts still gave the special issue
interrogatories to the jury, but added a supplemental instruction to “cure” any possible Penry defect.
Eventually, the Texas legislature adjusted the special issues to add a mitigating evidence question.
See Robertson v. Cockrell, 325 F.3d 243, 248-49 & n.4 (5th Cir. 2003) (en banc) (describing the
background of the period between Penry I and Penry II and detailing the new special issue). Coble’s
jury, however, received the interim supplemental instruction, as did Penry’s jury when his case was
retried.
7
The special issues are set out in TEX. CRIM. PROC. CODE art. 37.071. The third special issue,
which is not relevant to the Penry I/Penry II analysis, addresses whether the defendant’s conduct was
a reasonable response to the provocation, if any, of the victim. TEX. CRIM. PROC. CODE art.
37.071(b)(1)-(3) (Vernon 1981). The third special issue was not submitted to the jury despite the
objections of Coble’s trial counsel.
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Penry was retried and again found guilty of capital murder and sentenced to death. In Penry
II, the Supreme Court considered a constitutional challenge from Penry on whether the jury
instructions at Penry’s resentencing complied with its mandate in Penry I. The Court considered the
supplemental instruction given at Penry’s subsequent retrial,8 and held that the instruction provided
“an inadequate vehicle for the jury to make a reasoned moral response to Penry’s mitigating
evidence.” Penry II, 532 U.S. at 800. Specifically, the Court held that the supplemental instruction
potentially created an unacceptable dilemma for the jurors because it instructed the jurors to change
one of their truthful “yes” special issue answers to a “no” if they felt the defendant did not deserve
the death penalty. Thus, the instructions left the jurors with the choice of either not giving effect to
Penry’s proffered mitigation evidence or, alternatively, violating their oath as jurors to render a true
8
In its opinion, the Court restated the instruction:
You are instructed that when you deliberate on the questions posed
in the special issues, you are to consider mitigating circumstances, if
any, supported by the evidence presented in both phases of the trial,
whether presented by the state or the defendant. A mitigating
circumstance may include, but is not limited to, any aspect of the
defendant’s character and record or circumstances of the crime which
you believe could make a death sentence inappropriate in this case.
If you find that there are any mitigating circumstances in this case, you
must decide how much weight they deserve, if any, and therefore, give
effect and consideration to them in assessing the defendant’s personal
culpability at the time you answer the special issue. If you determine,
when giving effect to the mitigating evidence, if any, that a life
sentence, as reflected by a negative finding to the issue under
consideration, rather than a death sentence, is an appropriate response
to the personal culpability of the defendant, a negative finding should
be given to one of the special issues.
Penry II, 532 U.S. at 789-90.
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verdict.9 Id. at 798-801. Coble received a virtually identical supplemental instruction at his trial as
that given at Penry’s trial.10
“The Supreme Court’s rulings in Penry II and Smith should not be read to disturb its earlier
holdings affirming the constitutionality of Texas’ statutory death penalty sentencing scheme.” Bigby
v. Dretke, 402 F.3d 551, 570 (5th Cir. 2005) (citing Jurek v. Texas, 428 U.S. 262 (1976); Franklin
v. Lynaugh, 487 U.S. 164 (1988); Graham v. Collins, 506 U.S. 461 (1993); Johnson v. Texas, 509
U.S. 350 (1993); In re Kunkle, 398 F.3d 683 (5th Cir. 2005)). Therefore, in order to grant relief on
a Penry claim, “we must determine (1) whether the mitigating evidence has met the ‘low threshold
for relevance’ and, if so, (2) that the evidence was beyond the scope of the jury” in answering the
9
The Supreme Court again held in Smith v. Texas, 125 S. Ct. 400 (2004) that substantially
similar jury instructions as those provided in Penry II were constitutionally inadequate.
10
The State concedes this fact. In its entirety, the supplemental instruction given at Coble’s
trial, reads as follows:
You are instructed that when you deliberate on the questions posed
in the special issues, you are to consider the mitigating circumstances,
if any, supported by the evidence presented in both phases of the trial,
whether presented by the State or the Defendant. A mitigating
circumstance may include, but is not limited to, any aspect of the
defendant’s character and record or circumstances of the crime which
you believe could make a death sentence inappropriate in this case.
If you find that there are any mitigating circumstances in this case, you
must decide how much weight they deserve, and thereafter give effect
and consideration to them in assessing the defendant’s personal
culpability at the time you answer the special issue. If you determine,
when giving effect to the mitigating evidence, if any, that a life
sentence rather than a death sentence is an appropriate response to the
personal culpability of the defendant, a negative finding should be
given to one or more of the special issues under consideration.
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special issues.11 Bigby, 402 F.3d at 564-65 (quoting Tennard v. Dretke, 124 S. Ct. 2562, 2570
(2004) (internal quotations omitted); Madden v. Collins, 18 F.3d 304, 308 (5th Cir. 1994)).
A
First, the Supreme Court recently held that “a State cannot preclude the sentencer from
considering ‘any relevant mitigating evidence’ that the defendant proffers in support of a sentence less
than death . . . . [V]irtually no limits are placed on the relevant mitigating evidence a capital
defendant may introduce concerning his own circumstances.” Tennard, 124 S. Ct. at 2570 (quoting
Eddings v. Oklahoma, 455 U.S. 104, 114 (1982)). The Court defined relevant mitigating evidence
as “evidence which tends logically to prove or disprove some fact or circumstance which a fact-finder
could reasonably deem to have mitigating value.” Id. (quoting McKoy v. North Carolina, 494 U.S.
433, 440 (1990) (relevant mitigating evidence defined in the most expansive terms)). Furthermore,
the Court added that “a State cannot bar ‘the consideration of . . . evidence if the sentencer could
reasonably find it warrants a sentence less than death.’” Id. (quoting McKoy, 494 U.S. at 440).
During the sentencing phase of trial, Coble offered a variety of mitigating evidence. First, he
presented non-psychiatric mitigating evidence, including evidence of his troubled childhood; that his
father died before he was born; that his mother suffered a nervous breakdown when he was eleven;
and that he was sent to live at a state facility. Coble lived at the orphanage until he was seventeen,
11
Coble’s Penry claim must be considered in light of the recent Supreme Court decisions in
Tennard and Smith v. Texas, 125 S. Ct. 400 (2004) that significantly altered our circuit’s analysis
of mitigating evidence offered by a defendant in a capital case. Before Tennard and Smith, Penry-
type mitigating evidence was determined by the stringent test articulated in Graham v. Collins, 950
F.2d 1009, 1029 (5th Cir. 1992) (en banc), aff’d, 506 U.S. 461 (1993), and readopted in Robertson
v. Cockrell, 325 F.3d at 251. To qualify, mitigating evidence had to be “due to the uniquely severe
permanent handicaps with which the defendant was burdened through no fault of his own.”
Robertson, 325 F.3d at 251 (quoting Graham, 950 F.2d at 1029). In addition, the criminal acts of
the defendant had to be attributable to the severe permanent condition. Id. at 252.
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at which point he joined the Marines and served in Vietnam. During his four years of service, Coble
served as a machine gunner and was involved in combat. Upon his return to the United States, Coble
was hospitalized due to the trauma he experienced during the war. Likewise, Coble’s sister testified
that he was different after he returned from Vietnam. Coble offered testimony that he was involved
with various youth programs over the years, that he had a good relationship with his son, and that
he got along well with co-workers. Coble also served as a section leader in the U.S. Army reserves
and he offered evidence that he was well respected.
Coble also presented the testimony of two psychiatrists. The first, Dr. Mark, testified that
Coble was dangerous and might continue to be a danger. In fact, Dr. Mark testified that everything
in Coble’s history would make him a continuing threat. Dr. Mark also testified that Coble suffered
from two psychiatric disorders: post-traumatic stress disorder, brought about by his Vietnam
experiences, and a bipolar disorder. He stated that Coble was prone to become “[p]otentially
explosive and potentially aggressive and assaultive,” and suggested that the bipolar disorder might
be hereditary. Dr. Mark also indicated that these illnesses made Coble susceptible to severe mood
swings, which resulted in a loss of control on the day of the murders.
Dr. Mark did, however, indicate that Coble would be less likely to be violent if he took
medication. In fact, Dr. Mark indicated that, had he known before the murders of Coble’s past and
the depression Coble was experiencing because of the pending divorce and kidnaping charges, he
would have recommended hospitalization for further treatment and evaluation. Dr. Mark also
conceded that if Coble refused to take medication he would probably be violent in the future.
Dr. James Grigson, the second defense expert, testified that Coble was suffering from severe
depression at the time of the murders, and that it was very improbable that Coble would commit this
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type of offense again. Specifically, Dr. Grigson stated that Coble was more horrified by the pictures
of the victims than anyone, and that Coble had feelings of remorse and guilt. Both psychiatrists
agreed that Coble linked the loss of his wives with the loss of his mother, such that the divorces
triggered severe bouts of suicidal depression. Dr. Grigson also discussed a 1964 psychiatric report,
created by Dr. Ralph Hodges, which classified the fifteen year o ld Coble as having a “sociopathic
personality disturbance of the dissocial type.” Dr. Grigson stated that the term “sociopath” did not
mean the same thing in 1964 as it does now, and that a diagnosis of an individual as a sociopath could
not be made until a person was eighteen years old.12 He concluded that Coble “was not a sociopath
then, and not a sociopath now.”13
Applying the low threshold articulated in Tennard, it seems clear that the evidence submitted
by Coble constitutes relevant mitigating evidence, therefore satisfying the first prong in determining
if habeas relief is proper on his Penry claim. The Supreme Court noted in Tennard that “good-
character evidence . . . ‘may not be excluded from the sentencer’s consideration.’” 124 S. Ct. at 2570
(quoting Skipper v. South Carolina, 476 U.S. 1, 5 (1986)). All of Coble’s evidence is mitigating in
the sense t hat it might serve as a basis for a sentence less than death. See Tennard, 124 S. Ct. at
2570. Relevant mitigating evidence does not have to be linked to his conduct, but only show that it
could lead a jury to find that a sentence other than death is warranted. Id. at 2570-71.
B
12
Dr. Hodges did not define the term “sociopath” nor did Dr. Grigson explain in his testimony
the difference between the current meaning of the term compared to its meaning in 1964.
13
To rebut the psychiatric testimony, the State presented Dr. Richard Coons who testified
that, based on Coble’s history of emotional instability and violence, there was a probability that he
would continue to be dangerous in the future. In making this determination, Coons relied heavily on
the 1964 report.
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“Once this low threshold for relevance is met, the Eighth Amendment requires that the jury
be able to consider and give effect to [Coble’s] mitigating evidence.” Id. (quoting Boyde v.
California, 494 U.S. 370, 3770-78 (1998)) (internal quotations omitted). In Jurek, the Supreme
Court expressly upheld the constitutionality of the manner in which mitigating evidence is considered
under the “special issues” submitted to juries in Texas capital cases. 428 U.S. at 276. The Court
reasoned that the constitutionality of Texas’ death penalty statute “turns on whether the enumerated
questions allow consideration of particularized mitigating factors.” Id. at 272. Since Jurek, the
Supreme Court has consistently upheld the constitutionality of the Texas special issues if the jury can
consider and give effect to the mitigating evidence at issue. See Graham v. Collins, 506 U.S. 461,
474 (1993). Therefore, we must determine whether Coble’s mitigating evidence was beyond the
scope of the jury in answering the two special issue interrogatories.
1
The second special issue, as discussed supra, instructed the jury to consider “whether there
is a probability that the defendant would commit criminal acts of violence that would constitute a
continuing threat to society.” The requirements of the Eighth Amendment are satisfied “even if
evidence is aggravating, as long as the mitigating aspect is within the effective reach of the jury.”
Davis v. Scott, 51 F.3d 457, 464 (5th Cir. 1995). As the Supreme Court noted in Johnson v. Texas,
509 U.S. 350, 369-70 (1993), the only way Penry’s mitigating evidence of impaired mental condition
could be considered under the special issues was as an aggravating factor for future dangerousness.
This Circuit has previously held that mitigating evidence of mental illness could be considered
within the context of the second special issue, future dangerousness, if the illness can be controlled
or go into remission. See, e.g., Lucas v. Johnson, 132 F.3d 1069, 1082-83 (5th Cir. 1998); Robison
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v. Johnson, 151 F.3d 256, 266 (5th Cir. 1998). In Lucas this court distinguished Penry I, stating that
“the testimony at trial indicated that, although Lucas had mental problems, he responded well to
antipsychotic drugs like Thorazine and that his particular illness could be treated in a controlled
environment. This prospect of medical treatment placed the evidence of his mental illness and abusive
childhood within ‘the effective reach of the sentencer’” because “the jury could have considered
whether, in an institutional setting, the probability that Lucas posed as a future danger to society was
not so great as to merit imposition of the death sentence.” Lucas, 132 F.3d at 1082-83. Similarly,
this court held that Robison’s mental illness was within the scope of the future dangerousness special
issue since “both Robison’s expert and the state’s expert testified that schizophrenia is treatable, and
Robison’s expert testified that he was currently in a state of remission, which he attributed to being
a result of the structure of prison life.” Robison, 151 F.3d at 266.
As in Lucas and Robison, Coble’s mitigating evidence demonstrated that his mental illness
was treatable, thus placing it within the effective reach of the sentencer. Dr. Mark testified that, if
properly treated, Coble would be less likely to commit criminal acts constituting a continuing threat
to society. He also stated that medications were available to treat bipolar disorder that “help to
stabilize the mood on an even keel and chemically keep the person from getting the high moods or
the real low moods” as well as recently developed antidepressants that would “help block the
symptoms from coming out.” He testified that medical treatment would probably control Coble’s
mental illness and that “there wo uld be less likelihood of any criminal acts if he were adequately
treated for both of the disorders.” Dr. Grigson also testified, although Coble suffered “severe
depression due to his wife divorcing him,” that he “does not represent a continuing threat to society
and will not be involved in future acts of violence” because his crime was a “passion type thing.” The
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jury could have considered whether, in an institutional setting, the probability that Coble posed a
future danger to society was not so great as to merit imposition of the death sentence. Therefore,
we conclude that the special issues provided the jury an effective vehicle with which to consider
Coble’s mitigating evidence of his mental illnesses.
Coble’s case can be distinguished from this court’s recent holding in Bigby, where we found
that Bigby’s mitigation evidence of his mental illness could not be considered within the context of
the future dangerousness special issue because the evidence indicated that his condition could not be
adequately controlled or treated. Bigby, 402 F.3d at 571. In Bigby, “[t]he defense psychiatrist
testified that . . . medication was not sufficient to control his behavior and thinking.” Id. Dr. Mark
and Dr. Grigson concluded the opposite, that Coble’s mental illness could be controlled with
medication.
Next, Coble argues t hat the jury instructions deprived the jury of an effective vehicle with
which to consider his mitigating evidence of a troubled childhood. Prior to the Supreme Court’s
decision in Tennard, this court consistently held that evidence of child abuse or a troubled childhood
did not constitute “constitutionally relevant mitigating evidence.” Hernandez v. Johnson, 248 F.3d
344, 349 n.15 (5th Cir. 2001) (citing Davis, 51 F.3d at 461-62; Madden v. Collins, 18 F.3d 304, 308
(5th Cir. 1994)). This court, however, has also held that evidence of a defendant’s “unstable” and
“transient” childhood could be given effect under the special issues. Jacobs v. Scott, 31 F.3d 1319,
1327 (5th Cir. 1994) (citing Graham v. Collins, 506 U.S. 461 (1993)). In Jacobs, we distinguished
evidence of a troubled childhood offered by the defendant from that in Penry I. Id. Jacobs argued
that:
evidence was presented showing that Mr. Jacobs had an unstable, troubled childhood. He
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never knew his mother, and has only vague memories of his father. His father left him to live
alone with strangers when he was a small boy, and Mr. Jacobs never saw him again. Mr.
Jacobs ended up living in several foster homes as a child, separated from his sister, parents,
and all other family connections.
Id. Coble had a troubled childhood similar to that of Jacobs and Graham, “as opposed to a childhood
rife with harsh physical abuse like that of Penry.” Id. Coble’s evidence of his troubled childhood
included: (1) the death of his father before he was born; (2) poverty in childhood; (3) his stepfather’s
alcoholism and conflicts with his mother; and (4) his mother’s nervous breakdown. Coble’s evidence
is distinguishable from that in Penry. Therefore, we reject his contention that the Texas special issues
did not provide an adequate vehicle for the jury to make a reasoned moral response to Coble’s
mitigating evidence of his troubled childhood.
Finally, Coble argues that the jury could not consider the evidence of his goo charact er
d
within the second special issue. Coble presented evidence that: (1) he was involved with various
youth programs over the years; (2) he had a good relationship with his son; (3) he got along well with
co-workers; (4) he joined the Marines and served in Vietnam; and (5) he served as a section leader
in the U.S. Army reserves and was well respected. “Evidence of good character tends to show that
the crime was an aberration, which may support a negative answer to the special issue regarding the
future dangerousness of the defendant.” Boyd v. Johnson, 167 F.3d 907, 912 (5th Cir. 1999).
Therefore, as this court has previously held, “[good character] evidence can find adequate expression
under [the] second special issue.” Barnard v. Collins, 958 F.2d 634, 640 (5th Cir. 1992). See also
Boyd, 167 F.3d at 912; Graham, 950 F.2d at 1032-33.
2
The first special issue, as discussed supra, asked the jury to determine whether the defendant
-26-
had acted “deliberately, and with the reasonable expectation that the death of the deceaseds or
another would result.” In addition, the court instructed the jury that “‘deliberately’ has a meaning
different and distinct from the word ‘intentionally’ as that word was previously defined in the charge
on guilt and the word ‘deliberately’ as used in the first special issue means a manner of doing an act
characterized by or resulting from careful consideration, a conscious decision involving a thought
process which embraces more than mere will to engage in the conduct.”14
The State argues that since Coble’s jury was provided with a definition of “deliberateness,”
as suggested in Penry I and Penry II, that such a definition, as in Davis, cured any potential Penry
error. The State asserts that Davis indicated t hat a jury instruction defining deliberateness as
involving “careful consideration” would allow a jury to consider Davis’ evidence of “uncontrollable
impulses or lack of evaluation” due t o his mental illness. Thus, the State concludes that a similar
definition allowed Coble’s jury to give effect to his evidence of mental illness when answering the first
special issue. The State’s argument, however, was considered and rejected by this court in Bigby.
We determined that “[w]hile the state’s argument ))that any defect described in Penry with regard
to the first interrogatory was cured because ‘deliberately’ was defined ))is persuasive, we find that
the definition given by the state trial court was not sufficient to cure the infirmities found by the
Supreme Court.” Bigby, 402 F.3d at 570 n.7.
In Lucas, this court rejected the argument that the Texas “special issue” interrogatories did
not allow the jury to consider mitigating evidence of mental illness and childhood abuse. 132 F.3d
14
A nearly identical definition of “deliberate” was considered by this court in Davis, 51 F.3d
at 462. “Deliberate” in that case was defined as “a manner of doing an act characterized by or
resulting from careful consideration: ‘a conscious decision involving a thought process which
embraces more than mere will to engage in the conduct.’” Id.
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at 1082. Experts at trial testified that Lucas was psychotic and suffered from schizophrenia, and that
at the time of the murder Lucas would have been out of touch with reality and out of control over
his impulses. Id. This court held that “[i]t is clear to us that the sent encer could have effectively
considered the mitigating aspect of such evidence under the first interrogatory, that is, whether Lucas
acted deliberately when he committed the murder.” Id. However, in Bigby this court distinguished
Lucas, stating that:
Although Bigby’s history of mental illness was relevant to whether he acted deliberately, it
also spoke to his moral culpability. Importantly, Bigby’s evidence indicated that his
schizophrenia was chronic and severe, caused him to suffer delusions with respect to the
actions and motivations of the people around him, could not be adequately treated, and
significantly impacted his interpersonal relationship abilities. Inquiry into whether Bigby acted
deliberately fails to fully account for the potential impact [schizophrenia] may have upon the
jury’s perception of Bigby’s moral responsibility for his crimes.
Bigby, 402 F.3d at 571. Therefore, this court concluded that the first special issue did not allow the
jury to adequately consider the effect of Bigby’s mitigating evidence of mental illness.
Dr. Mark testified that Coble’s depression )) as a result of his post-traumatic stress disorder
and bipolar disorder ))caused Coble to lose control of himself during the commission of the crimes.
Similarly, Dr. Grigson testified that Coble’s depression resulted in irrational and illogical behavior.
Having determined that the jury had an adequate means, through the second special issue, to
consider Coble’s mitigating evidence of mental illness, we need not consider whether the first special
issue provides another, separate, adequate means. We therefore decline to determine when the first
special issue provides a vehicle with which to consider mitigating evidence o f mental illness, as in
Lucas, as opposed to where the “deliberateness” special issue fails to adequately allow the jury to
consider the effect of this evidence, as in Bigby.
3
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The Supreme Court held in Penry II and Smith that the “supplemental instruction” provided
“an inadequate vehicle for the jury to make a reasoned moral response to Penry’s mitigating
evidence.” Penry II, 532 U.S. at 800; see also Smith, 125 S. Ct. at 406-07. Coble received a nearly
identical “supplemental instruction” to the one the Supreme Court considered in Penry II and Smith.
However, the supplemental instruction given in addition to the special issue interrogatories is only
unconstitutional where the special issue questions themselves are not broad enough to provide a
vehicle for the jury to give effect to the defendant’s mitigation evidence. Bigby, 402 F.3d at 570
(citing Robertson v. Cockrell, 325 F.3d 243, 258 (5th Cir. 2003)). If the jury can give full effect to
mitigating evidence in answering the special issues, the nullification instruction does not require the
jury to change a truthful “yes” answer to an untruthful “no” answer in order to give credence to the
mitigating evidence. See Penry II, 532 U.S. at 797. The nullification instruction in such cases would
not place the mitigating evidence beyond the effective reach of the jury. Any error in giving the
nullification instruction would be harmless and thus there would be no basis for habeas relief. Bigby,
402 F.3d at 570.
Since we hold that all of Coble’s mitigating evidence could be given effect within the special
issue questions, simply receiving the nullification instruction did not place Coble’s evidence beyond
the effective reach of the jury. Therefore, the state court’s adjudication of Coble’s Penry claim was
not “contrary to, [and did not involve] an unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1).
V
For the foregoing reasons, we AFFIRM the district court’s dismissal of Coble’s habeas
petition.
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Coble v. Quarterman
Court: Court of Appeals for the Fifth Circuit
Date filed: 2005-07-18
Citations: 496 F.3d 430
Copy CitationsCombined Opinion