Robertson v. Cockrell

UNITED STATES COURT OF APPEALS
For the Fifth Circuit

No. 00-10512

MARK ROBERTSON,

Petitioner-Appellant,

VERSUS

GARY JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,

Respondent-Appellee.

Appeal from the United States District Court
For the Northern District of Texas
December 4, 2000
Before HIGGINBOTHAM, DeMOSS, and STEWART, Circuit Judges.
DeMOSS, Circuit Judge:

Petitioner Mark Robertson moves this Court for a certificate

of appealability with respect to the district court’s dismissal of

his 28 U.S.C. § 2254 claims that his Texas state capital conviction

was secured in violation of his Eighth and Fourteenth Amendment

rights. Robertson seeks COA on two issues, both of which relate to

the instructions given to the jury by the state trial court.

Robertson first claims that the state trial court’s refusal to

charge the jury on the lesser included offense of murder (as
opposed to capital murder, which is statutorily defined to include

certain aggravating elements that justify imposition of the death

penalty in Texas) violated his Eighth and Fourteenth Amendment

rights as set forth in Beck v. Alabama, 100 S. Ct. 2382 (1980), and

its progeny. Robertson also claims that the trial court’s decision

to instruct the jury that it could answer one of the statutory

special issues “no” (thus precluding assessment of the death

penalty) if persuaded that mitigating evidence made the death

penalty inappropriate, combined with the trial court’s refusal to

give the jury a third special issue expressly addressing the effect

of mitigating evidence, violated his Eighth and Fourteenth

Amendment rights as set forth in Penry v. Lynaugh, 109 S. Ct. 2934

(1989), and its progeny. We deny Robertson’s petition for COA as

to both issues.

I. BACKGROUND

A. The Crimes

Robertson was convicted and sentenced to death for the August

19, 1989 capital murder of Edna Brau in the course of a robbery of

her home. Robertson is also serving a life sentence for the murder

of Brau’s grandson Sean Hill in the course of the same incident.

Robertson is also serving a life sentence for the murder of a 19-

year-old convenience store clerk during the course of a robbery on

August 9, 1989, shortly before the Brau and Hill murders. The

facts relating to Robertson’s offense, arrest, and subsequent

2
convictions are as follows.

Edna Brau and her grandson, 19-year-old Sean Hill, were last

seen alive on August 19, 1989, at Brau's Dallas, Texas home where

both Brau and Hill lived. Hill's accommodations were in a separate

wing of the house, with its own bath and an outside door providing

independent access to the home. On the afternoon of August 20,

1989, Brau’s daughter and son-in-law came to Brau’s home and found

her dead on the den sofa. Police later determined that Brau was

shot once in the face. Hill was found dead in a pond behind the

house. Hill was shot once in the back of the head. Brau's

belongings in her portion of the residence, including the den,

master bedroom, master bedroom dressing area, kitchen, and dining

room were in disarray, as though someone had rummaged through the

house. Brau’s purse, her car keys, the papers on her car, and her

blue Cadillac were all missing, together with other personal

belongings.

B. The Arrest and Subsequent Confessions

Eight days later, a Las Vegas police officer observed

Robertson, accompanied by a male passenger, driving the stolen

Cadillac on the Las Vegas strip. A NCIC computer check confirmed

that the car was stolen and that the occupants might be armed and

dangerous. Las Vegas police continued observing the car after it

was parked in the parking lot of the Circus Circus casino. When

Robertson and the passenger returned to the car, the police moved

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in to apprehend both men. The gun used to murder Brau and Hill was

found in Brau’s Cadillac.

At the arrest scene, Robertson informed police that they were

lucky to have approached quickly, before he could retrieve the gun

hidden under the seat. Robertson asked police where the television

cameras were and whether he was on America’s Most Wanted. When Las

Vegas Sergeant Mark Medina inquired what he meant, Robertson

confessed to Medina that he was on probation for robbery in Dallas

and, further, that he had shot Edna Brau and her grandson Sean Hill

in Dallas. Robertson told Sergeant Medina that he went to the

house to see Hill, who had been a friend and drug supplier of

Robertson’s. Robertson claimed that he and Hill used some crank

(crystal methamphetamine), and then went outside to go fishing.1

Robertson told Sergeant Medina that while Hill was fishing, he shot

Hill once in the back of the head with a .38 caliber firearm.

Robertson told Medina that he wanted to steal Hill's drugs.

Robertson also told Medina that he went into Brau's portion of the

home because he wanted to find money, jewelry, and the title to

Brau's car, which he planned to sell later. Robertson shot Brau

once in the head when he discovered her watching television on the

couch in her den.2

1
Contrary to Robertson's oral confession, the autopsy performed
on Hill indicated that there were no drugs in Hill’s body at the
time of his death.
2
Robertson later made consistent oral confessions to other
officers.

4
 Robertson also signed a written confession, in which he

states:

On Saturday night around 9 PM I decided to
walk over to Sean’s house on Hathaway where he
lived with his grandmother. When I got there, Sean
was in his room watching T.V. We sat around
watched TV and did some pot and crank. We then
decided to go fishing out in the backyard. We were
using one stick with a string and a hook. We would
trade off, I think we caught some seven catfishes.
While we were fishing, I think we were kneeling. I
pulled my gun out of my pants and shot Sean once in
the head. After I shot him, Sean fell in the
water. I then ran in the house through Sean’s
bedroom and into the bathroom where I splashed some
water over my face. I then walked into the den
where Mrs. Hill, Sean’s grandmother, was watching
TV and I shot her once. I unplugged the TV because
it was playing and so was the radio in the bedroom.

I looked through her bedroom drawers and found
her purse on the make-up counter. I saw some
costume jewelry but left it alone. I did take a
wristwatch which I later threw away in a garbage
can but I don’t remember where. I then ran into
Sean’s room and took his crank which was left on
the bed. I then drove off in Mrs. Hill’s car. I
went on home and then went to Showtime on
Greenville and Lover’s where I wiped it all down
and left it there. I then walked back home. Next
day while listening to the evening news I heard
about their bodies being found. I couldn’t sleep
for the next couple of days so I figured that I
would just leave. I walked back to the parking lot
at Showtime where I got in the car and decided to
drive to Las Vegas where my parents used to bring
me. I had left the car in the parking lot. I
threw the purse away in a dumpster at the Village
Apts. I think that I left on Tuesday sometime
around 4 PM. I drove all the way to Albuquerque,
N. Mexico where I spent the night and the following
day I drove to Vegas. I was staying at the SuLinda
Motel in Vegas. I met Nikki two or three days
later at the Circus-Circus. I used my roommate’s
money to get to Vegas. He had some $700.00 in cash
in his room. I think that Mrs. Hill’s purse had
some $37.00 in cash which I took. These past few

5
 days I didn’t know what to do and when I got
arrested I felt relieved for the most part because
I didn’t have to run anymore.

II. PROCEDURAL HISTORY

A. The Trial

Robertson was prosecuted in Texas for the three murders. With

respect to Brau, Robertson was charged with capital murder

committed in the course of a robbery. See Tex. Penal Code § 19.093

(a)(2) (West 1990). Robertson pleaded not guilty to Brau’s murder

and was tried by a jury, which returned a verdict of guilty to the

charge of capital murder. Robertson did not present any evidence

during the guilt phase of his capital trial.

During the punishment phase, the state presented evidence,

inter alia, relating to Robertson’s past criminal behavior, which

included serious vandalism at about age 12, suspension for taking

a loaded handgun to school at about age 13, car theft and

destruction of property at about age 14, marijuana possession at

about age 15, and a second marijuana possession resulting in

conviction at about age 18, an aggravated robbery conviction

involving a baseball bat and knife at about age 18, and thirteen

cases of issuing bad checks at about age 19, after which he

violated the terms of his probation on the aggravated robbery

charge and the bad check charge by failing to report, failing to

pursue drug counseling, and failing to perform community service.

The state also presented extensive evidence relating to Robertson's

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murder of the 19-year-old convenience store clerk only ten days

before he killed Brau and Hill. Finally, the state produced

records of Robertson’s bad prison behavior since incarceration on

the charge, including evidence of an escape attempt and a fire he

set in his cell.

Robertson produced evidence that his father was alcoholic and

both physically and emotionally abusive, that he was considered

respectful and polite by some, that he had obtained a GED before

quitting school, and that his girlfriend considered him a good

person. Robertson also presented evidence of his struggle with

drugs.

At the close of evidence, the jury received the following

instruction, among many others:

You are instructed that you shall consider any
evidence, which, in your opinion, is mitigating.
Mitigating evidence is evidence that reduces the
defendant’s personal or moral culpability, or
blameworthiness, and may include, but is not
limited to an aspect of the defendant’s character,
record, background, or circumstances of the offense
for which you have found him guilty. Our law does
not specify what may or may not be considered as
mitigating evidence. Neither does our law provide
a formula for determining how much weight, if any,
a mitigating circumstance deserves. You may hear
evidence, which in your judgment, has no
relationship to any of the special issues, but if
you find such evidence is mitigating under these
instructions, you shall consider the following
instructions of the court. You and each of you,
are the sole judges of what evidence, if any, is
mitigating and how much weight, if any, the
mitigating circumstances, if any, including those
which have no relationship to any of the special
issues, deserves.

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 You are instructed that some mitigating
evidence, if any, may not be relevant to resolving
the special issues but may be relevant in
determining whether or not the defendant should be
put to death.

In answering the Special Issues submitted to
you herein, if you believe that the State has
proved beyond a reasonable doubt that the answers
to the Special Issues are “Yes,” and you also
believe from the mitigating evidence, if any, that
the defendant should not be sentenced to death,
then you shall answer at least one of the Special
Issues “No” in order to give effect to your belief
that the death penalty should not be imposed due to
the mitigating evidence presented to you. In this
regard, you are further instructed that the State
of Texas must prove beyond a reasonable doubt that
the death sentence should be imposed despite the
mitigating evidence, if any, admitted before you.

This instruction is referred to by both parties as the

“nullification” instruction.

The jury returned affirmative answers to the statutory special

issues submitted. In February 1991, the trial court sentenced

Robertson to death.

B. On Direct Appeal

On direct appeal, the Texas Court of Criminal Appeals

affirmed, and the Supreme Court subsequently denied Robertson’s

petition for writ of certiorari. See Robertson v. State, 871

S.W.2d 701 (Tex. Crim. App. 1993), cert. denied, 513 U.S. 853

(1994).

The Texas Court of Criminal Appeals decision on direct appeal

addressed several issues that are germane to the two issues that

Robertson seeks a COA for here. Of particular relevance to

8
Robertson’s first issue, his argument that he was entitled to a

jury instruction on the lesser included offense of murder,

Robertson argued that the evidence was insufficient to support his

conviction for capital murder because the differentiating capital

component, murder in the course of a robbery, was not proven.

Robertson also argued, as he does now, that the trial court erred

by refusing to give a jury charge on the lesser included offense of

murder, which he claims was supported by the evidence because the

jury could have reasonably rejected the state’s evidence that

Robertson killed Brau in the course of a robbery. Robertson argued

that a non-capital conviction was possible because the jury could

have believed that he did not form the intent to rob Brau until

after he shot and killed her, which Robertson claims would have

negated the element required to define his offense as a capital

crime.

The Texas Court of Criminal Appeals rejected Robertson’s

arguments, holding that the government’s evidence was sufficient to

prove beyond a reasonable doubt that Robertson committed Brau’s

murder in the course of committing a robbery, as that element is

defined by Texas law. See Robertson, 871 S.W.2d at 705 (holding

that the intent to rob must be formed before the murder, but that

there is no requirement that the wrongful appropriation take place

before the murder). The Court also held that Robertson was not

entitled to an instruction on the lesser included offense of

murder, finding as a factual matter that the evidence did not

9
support Robertson’s contention that a non-capital conviction was

possible. See id. at 706.

Of particular relevance to Robertson’s second issue, he also

raised a number of arguments on direct appeal relating to the trial

court’s punishment phase instructions to the jury. Robertson

argued that the trial court erred by submitting the lengthy

instruction on the effect of mitigating evidence and that the trial

court should have given a separate special issue permitting the

jury to express its view of the role played by the mitigating

evidence presented. Robertson also made other, related claims

that, in sum, amounted to an allegation that the jury was not given

an adequate vehicle for guiding its discretion to give weight to

mitigating evidence.

The Texas Court of Criminal Appeals likewise rejected these

arguments. The Court considered Robertson’s claims in light of

existing United States Supreme Court precedent. Specifically, the

Court held that the “nullification” charge permitted, and indeed

invited, the jury to consider all of the constitutionally relevant

evidence, thus avoiding the constitutional infirmities condemned by

Penry v. Lynaugh, 109 S. Ct. 2934 (1989). See Robertson, 871

S.W.2d at 710-11.

C. State Habeas Corpus

Three years later, Robertson filed a state petition for habeas

corpus relief in the convicting court. The state court held an

10
evidentiary hearing, and then entered eighty-six separate findings

of fact and conclusions of law, ultimately recommending that relief

be denied.

Of particular relevance to Robertson’s first issue, his

argument that he was entitled to an instruction on the lesser

included offense of murder, the state habeas court relied upon the

Supreme Court's decisions in Beck v. Alabama, 100 S. Ct. 2382

(1980), and Hopper v. Evans, 102 S. Ct. 2049 (1982), which held

that a capital jury must be instructed on a lesser included non-

capital offense when the jury could rationally find that the

capital defendant was guilty of only the lesser included non-

capital offense. See Hopper, 102 S. Ct. at 2053 (“Beck held that

due process requires that a lesser included offense instruction be

given when the evidence warrants such an instruction. But due

process requires that a lesser included offense instruction be

given only when the evidence warrants such an instruction.”).

Applying these clearly established legal principles, the state

habeas court held that the trial court did not err by refusing to

give an instruction on the lesser included offense of murder

because, as a factual matter, “there was no evidence in the record

that if the applicant was guilty, he was guilty only of murder.”

The state habeas court cited compelling evidence that Robertson

formed the intent to murder Brau before he shot her and found,

again as a factual matter, that Robertson purposefully entered Mrs.

Brau’s separate portion of the residence, “encountered Mrs. Brau in

11
her den and killed her in order to facilitate his desire to take

her car and any money she had.” The state habeas court further

noted that “there was no evidence presented at applicant’s trial

that even suggested any other reason for murdering Mrs. Brau other

than to facilitate robbing her.” Thus, Robertson’s contention that

the jury could have found that he formed the intent to rob Brau

after he murdered her was supported only by Robertson’s own

speculation that such could be the case. The state habeas court

concluded that Robertson was not entitled to a murder instruction

because:

[I]n order for the jury to have found that the
applicant was guilty of only murder, they would
have had to ignore all of the compelling evidence
presented that established that applicant killed
Mrs. Brau in order to facilitate his robbery of her
and to create another possible motive based on no
evidence, and this would not have been a rational
finding.

Of particular relevance to Robertson’s second issue, the state

habeas court held that the instructions given in Robertson’s case

were adequate to satisfy the constitutional demands of Penry v.

Lynaugh, 109 S. Ct. 2934 (1989), and related cases. The state

habeas court correctly noted that Penry did not mandate that any

particular vehicle be used to guide the jury's discretion to

consider mitigating evidence in a capital case. Thus, Penry does

not support Robertson's contention that he was entitled to

submission of a third special issue specific to the issue of

mitigating evidence. The state habeas court then relied upon a

12
host of post-Penry Texas cases holding that jury instructions like

the ones given in Robertson’s case provide a constitutionally

adequate vehicle for guiding the jury's discretion as required by

Penry. See Patrick v. State, 906 S.W.2d 481, 493-94 (Tex. Crim.

App. 1995); Heiselbetz v. State, 906 S.W.2d 500, 503 (Tex. Crim.

App. 1995); Riddle v. State, 888 S.W.2d 1, 7-8 (Tex. Crim. App.

1994); Garcia v. State, 887 S.W.2d 846, 860 (Tex. Crim. App. 1994);

Fuller v. State, 829 S.W.2d 191 (Tex. Crim. App. 1992). The state

habeas court concluded that the jury instructions given in

Robertson's case provided a constitutionally adequate vehicle for

guiding the jury's discretion to consider mitigating evidence.

In November 1998, the Texas Court of Criminal Appeals relied

upon the trial court’s findings and conclusions to deny relief.

D. Federal Habeas Corpus

In November 1998, Robertson filed the instant federal petition

for relief pursuant to 28 U.S.C. § 2254. Robertson once again

alleged constitutional error arising, inter alia, from: (1) the

trial court’s refusal to give the jury an instruction on the lesser

included offense of murder, and (2) the trial court’s submission of

a “nullification” instruction and refusal to create a third special

issue on the effect of mitigating evidence. Given the date of

Robertson’s filing, his claims are governed by AEDPA. See Lindh v.

Murphy, 117 S. Ct. 2059, 2058 (1997).

In March 2000, a federal Magistrate Judge entered a

13
recommendation that Robertson’s petition be denied and dismissed.

With regard to Robertson’s first issue, the Magistrate Judge

summarily concluded that Robertson could not overcome the force of

the state courts' factual determinations that the evidence did not

support a murder instruction. See 28 U.S.C. § 2254(d)(2) & (e)(1).

With regard to Robertson’s second issue, the Magistrate Judge

likewise concluded that Robertson could not demonstrate that the

decisions of the state courts were contrary to or involved an

unreasonable application of clearly established federal law, as

decided by the United States Supreme Court. See 28 U.S.C.

§ 2254(d)(1).

In March 2000, the federal district court adopted the

Magistrate Judge’s recommendation and dismissed Robertson’s § 2254

petition. Robertson filed a timely notice of appeal and a request

for COA in the district court. The district court denied COA, and

Robertson filed the instant motion with this Court.

III. CONTROLLING STANDARDS

To obtain a COA, Robertson must make a substantial showing of

the denial of a constitutional right. See 28 U.S.C. § 2253(c)(2);

Barrientes v. Johnson, 221 F.3d 741, 771 (5th Cir. 2000). To meet

this standard, Robertson must demonstrate “`that reasonable jurists

could debate whether (or, for that matter, agree that) the petition

should have been resolved in a different manner or that the issues

presented were adequate to deserve encouragement to proceed

14
further.’" Barrientes, 221 F.3d at 771 (quoting Slack v. McDaniel,

120 S. Ct. 1595, 1603-04 (2000)).

“[T]he determination of whether a COA should issue must be

made by viewing the petitioner's arguments through the lens of the

deferential scheme laid out in 28 U.S.C. § 2254(d).” Id. Under

that section, we are required to defer to a state habeas court's

adjudication of a state prisoner's habeas claims on the merits

unless the state habeas court's decision: (1) “was contrary to, or

involved an unreasonable application of, clearly established

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

States,” § 2254(d)(1), or (2) constituted an “unreasonable

determination of the facts in light of the evidence presented in

the State court proceeding,” § 2254(d)(2).

The purpose and intent of § 2254(d) is to restrict the number

of cases in which competent adjudications by our state courts are

subjected to open-ended and unfettered review by the federal

courts. For that reason, a state habeas court's decision will

generally not be considered “contrary to” clearly established

federal law unless: (1) the court's legal conclusion is in direct

opposition to a prior conclusion of the United States Supreme Court

on the same legal issue, or (2) the court reaches a different

result than a prior decision of the United States Supreme Court on

a set of materially indistinguishable facts. See Barrientes, 221

F.3d at 772. Similarly, a state habeas court's decision will not

15
be considered an “unreasonable application” of clearly established

federal law unless, notwithstanding the fact that the state court

has correctly identified the controlling legal principles, the

state habeas court applies those principles to the petitioner's

case in an unreasonable manner. Id.

AEDPA likewise obligates the federal habeas courts to afford

the state habeas court's factual determinations substantial

deference. Indeed, we must presume that the state habeas court’s

factual determinations are correct, unless rebutted with clear and

convincing evidence. See 28 U.S.C. § 2254(e)(1).

Robertson has not, in this case, satisfied AEDPA's rigorous

standard for establishing error in the legal conclusions or factual

determinations made by the state habeas court when adjudicating his

claims. With respect to Robertson's first issue, his argument that

due process required that his jury be given an instruction on the

lesser included offense of murder, the state habeas court's legal

analysis was appropriately premised upon the Supreme Court's

decision in Beck. Robertson does not identify any other Supreme

Court authority capable of calling the state habeas court's

reliance upon that case or its application of that case

unreasonable. Rather, Robertson’s essential point is that the jury

could have acquitted on the capital murder charge and convicted on

a murder instruction because the jury could have rationally found

that he did not form the intent to rob Mrs. Brau until after the

16
offense was completed. We take his point to be primarily a

challenge to the state habeas court's factual and record-based

findings: (1) that there was ample record evidence to establish

that Robertson formed the intent to rob Mrs. Brau before he killed

her, and (2) that there was absolutely no record evidence to

support Robertson’s speculative contention that he could have

formed the intent to rob Mrs. Brau after he shot her.

Having reviewed the record in light of Robertson's claim, we

find no basis for finding that the state habeas court's factual

determinations in this regard are either unreasonable or rebutted

by clear and convincing evidence to the contrary. Robertson has

not identified any actual record evidence, let alone clear and

convincing evidence, that the factual conclusions of those courts

were in error. Robertson’s claims to the contrary are nothing more

than supposition, which do not deserve encouragement and could not

have served as the foundation of a rational jury finding. We

therefore deny Robertson's motion for COA as to his argument that

the trial court's refusal to give a murder instruction violated his

constitutional rights.

With respect to Robertson's second issue, his argument that

the jury instructions failed to provide an adequate vehicle for the

consideration of constitutionally relevant mitigating evidence,

Robertson's primary argument is that the state habeas court's

decision was either contrary to or constituted an unreasonable

17
application of the Supreme Court's decision in Penry v. Lynaugh,

109 S. Ct. 2934 (1989).

We disagree. Robertson proceeded to trial in August 1990, and

he was sentenced to death in February 1991. At that time, the

Texas death penalty scheme, codified at Texas Code of Criminal

Procedure article 37.071, required affirmative answers to two

special issues: one on deliberateness and one on future

dangerousness. The statute further required an instruction on

provocation, if warranted by the evidence.

In 1989, the Supreme Court reviewed this same version of the

Texas statute in Penry. Penry held that the statutory issues

standing alone, without further instructions to the jury, did not

provide Penry's jurors with an adequate vehicle for rational

consideration of constitutionally relevant mitigating evidence of

Penry’s mental condition. See Penry, 109 S. Ct. at 2949-52. The

Supreme Court remanded the case for resentencing, requiring that

additional instructions be given on the issue of mitigating

evidence. The Supreme Court did not, however, direct that any

particular scheme be used to permit consideration of mitigating

evidence. Moreover, the Supreme Court framed its discussion

primarily in terms of additional instructions that might be given

to the jury, rather than in terms of an additional special issue.

See id. at 2952; see also id. at 2943-44, 2948, 2949, 2951. Thus,

Penry left the issue of precisely what instructions were required

to permit proper consideration of mitigating evidence to the

18
discretion of Texas trial judges.

When Robertson was tried, Texas courts were approaching the

Penry issue on a case by case basis, with many employing

instructions similar to those used in Robertson’s case. See Goff

v. State, 931 S.W.2d 537, 551 & n.3 (Tex. Crim. App. 1996); Lewis

v. State, 911 S.W.2d 1, 6 & n.12 (Tex. Crim. App. 1995); Patrick v.

State, 906 S.W.2d 481, 493-94 (Tex. Crim. App. 1995); Heiselbetz v.

State, 906 S.W.2d 500, 503 (Tex. Crim. App. 1995); Riddle v. State,

888 S.W.2d 1, 7-8 (Tex. Crim. App. 1994); Garcia v. State, 887

S.W.2d 846, 860 (Tex. Crim. App. 1994); Fuller v. State, 829 S.W.2d

191 (Tex. Crim. App. 1992). Robertson has not identified any

portion of Penry or any other then-applicable Supreme Court

authority that would render the approach taken by the Texas courts

in general or his state habeas court in particular contrary to or

an unreasonable application of clearly established federal law.

Moreover, this Court has already rejected the argument that the

approach taken by the Texas courts constituted an unreasonable

application of the Supreme Court's decision in Penry. See Penry v.

Johnson, 215 F.3d 504, 508-09 (5th Cir. 2000), pet. for cert. filed,

(U.S. Nov. 16, 2000) (No. 900-6677).3 We, therefore, deny

3
Alternatively, Robertson argues that the instruction given in
this case is per se unconstitutional because it is contrary to
United State v. Sparf, 15 S. Ct. 273 (1895). We disagree. There
is no doubt that an instruction permitting or encouraging the jury
to avoid the controlling law would potentially raise serious or
even insurmountable concerns. But the jury in this case “was not
told to disregard the law; rather, it was instructed on how to obey
the law, as explained by the Supreme Court in Penry I.” Penry, 215

19
Robertson's motion for COA as to his argument that the trial court's

jury instructions on the issue of mitigating evidence failed to

provide an adequate vehicle for the jury's discretion in this

capital case.

CONCLUSION

For the foregoing reasons, Robertson’s motion for a certificate

of appealability is DENIED.

F.3d at 509.

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