United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
For the Fifth Circuit January 20, 2005
Charles R. Fulbruge III
Clerk
No. 04-41557
IN RE: TROY KUNKLE,
Movant.
On Petitioner’s Application for Authority to File a Successive
Habeas in the United States District Court for the Southern
District of Texas
Before HIGGINBOTHAM, DAVIS and JONES, Circuit Judges.
PER CURIAM:
Kunkle, who is scheduled for execution on January 25, 2005,
filed this motion for authority to file a successive habeas and for
a stay of execution. We DENY the motion and DENY the stay request.
I.
Kunkle seeks permission to file a successive habeas under the
authority of 28 U.S.C. § 2244(b)(2), which states in part that “[a]
claim presented in a second or successive habeas corpus application
under section 2254 that was not presented in a prior application
shall be dismissed unless . . . (A) the application shows that the
claim relies on a new rule of constitutional law, made retroactive
to cases on collateral review by the Supreme Court, that was
previously unavailable.”
Kunkle asserts that the jury was unable to give effect to his
mitigating evidence and that because relief was not available to
him before the Supreme Court’s decisions in Tennard v. Dretke, 124
S.Ct. 2562 (2004) and Smith v. Texas, 125 S.Ct. 400 (2004), he is
entitled to seek relief under rules recently announced in those
cases.
Section 2244(b)(2) does not literally apply to this motion
because Kunkle argued in his first federal habeas petition filed in
the district court that the jury could not give effect to his
mitigating evidence under Penry v. Lynaugh, 492 U.S. 302 (1989)
(“Penry I”). Thus, § 2244(b)(1) literally applies to the claim
Kunkle seeks to assert in a successive habeas. This section
provides that “[a] claim presented in a second or successive habeas
corpus application under section 2254 that was presented in a prior
application shall be dismissed.” Assuming without deciding that
Kunkle may rely on § 2244(b)(2) as authority to file this
successive habeas, we nevertheless deny the motion for the
following reasons:
The express language of the Supreme Court in both Tennard and
Smith makes it clear that neither of these cases announce a new
rule as required for a successive habeas under § 2244(b)(2). As
the Court explained in Smith, “that [Smith’s] evidence was relevant
for mitigation purposes is plain under our precedents, even those
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predating Tennard.” 125 S.Ct. at 405 (citing Penry I, 492 U.S. at
319-322, Payne v. Tennessee, 501 U.S. 808, 822 (1991), Boyde v.
California, 494 U.S. 370, 377-378 (1990) and Eddings v. Oklahoma,
455 U.S. 104, 114 (1982)). (Emphasis added).
Tennard relied on the same cases in analyzing the relevance of
Tennard’s mitigating evidence and rejecting this court’s
“constitutional relevance” standard. 124 S.Ct. at 2569-72.
II.
Even if we assume that Smith and Tennard announce new rules
that are retroactive to cases on collateral review, this case
presents no Tennard/Smith issue. There is no evidence in this
record that Kunkle suffered from any psychotic thought disorder,
schizophrenia or other mental or emotional problems that are in any
way similar to the type of evidence that was the focus of the Court
in Tennard and Smith. Also, no “nullification instruction,” such
as the Court considered in Smith, was given in Kunkle’s case.
Additionally, neither the Texas Court of Criminal Appeals nor the
federal district court utilized a “screening test” to dispose of
evidence that was not “uniquely severe” or lacked a “nexus” of
events.1
Kunkle’s mitigating evidence of his drug abuse, youth,
1
Kunkle, in his first federal habeas proceeding, did not seek a
certificate of appeal from this court to review the district
court’s rejection of his Penry I claim.
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attendance at an “alternative” school because of disciplinary
problems, testimony by school psychiatrists that he exhibited poor
judgment, laziness, surliness and a flagrant disregard for the
rights and needs of others all fit within the scope of the two
Texas special issues. See Jurek v. Texas, 428 U.S. 262, 266-67
(1976), Graham v. Collins, 506 U.S. 461, 474-76 (1993), and Johnson
v. Texas, 509 U.S. 350, 368 (1993). Any reading of Smith as not
being limited to mental impairment but rather reaching all types of
mitigating evidence as Kunkle urges is inconsistent with the above
cases. We are not persuaded that the Court intended to undercut
Jurek, Graham, and Johnson without even citing them. Whether
Tennard or Smith sweep so broadly as to create a conflict with its
own Jurek or Graham decisions is for the Supreme Court.
The Motions for Authorization to File a Successive Petition
and for Stay of Execution are DENIED.2
2
Kunkle also suggests that this court recall its mandate and
reopen the prior proceedings so that he may raise the Penry I claim
he abandoned when he did not seek a COA from the district court’s
denial of relief on that claim. This court may not recall its
mandate to consider a claim that was not before it during the
original appeal. Bottone v. United States, 350 F.3d 59, 63-64 (2d
Cir. 2003), cert. denied, 125 S.Ct. 98 (2004). Kunkle’s 2004
motion to stay the mandate did not raise a Penry I issue because he
did not brief this claim on appeal. We conclude that Calderon v.
Thompson, 523 U.S. 538 (1998) cannot excuse Kunkle’s failure to
raise the Penry I issue during his first appeal to this court.
Nevertheless Thompson would be inapplicable even if Kunkle had
properly raised the Penry I claim on appeal. In Thompson, the
Supreme court held that a prisoner’s motion to recall the mandate
on the basis of the merits of the underlying decision can be
regarded as a second or successive application for purposes of §
2244(b). Thompson, 523 U.S. at 553. Because Kunkle fails to
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overcome the successive petition limitations in § 2244(b)(1) and
(2)(A) as discussed above, Kunkle’s motion would be pointless when
considered in this light. Therefore Kunkle’s motion to recall the
mandate is DENIED.
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