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.
20