Mark Robertson v. Janie Cockrell, Director, Texas Department of Criminal Justice, Institutional Division

Fifth Circuit

Mark Robertson v. Janie Cockrell, Director, Texas Department of Criminal Justice, Institutional Division

279 F.3d 1062, 2002 U.S. App. LEXIS 729, 2002 WL 63401

CourtCourt of Appeals for the Fifth Circuit

DecidedJanuary 17, 2002

Docket00-10512

StatusPublished

Cited by7 cases

This text of 279 F.3d 1062 (Mark Robertson v. Janie Cockrell, Director, Texas Department of Criminal Justice, Institutional Division) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Mark Robertson v. Janie Cockrell, Director, Texas Department of Criminal Justice, Institutional Division, 279 F.3d 1062, 2002 U.S. App. LEXIS 729, 2002 WL 63401 (5th Cir. 2002).

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Opinion

ON REMAND FROM THE UNITED STATES SUPREME COURT

Before HIGGINBOTHAM, DeMOSS and STEWART, Circuit Judges.

DeMOSS, Circuit Judge:

On December 4, 2000, this Court issued an opinion which held that Mark Robertson, petitioner, was not entitled to a Certificate of Appealability (COA) on (i) his claim that due process required instruction at trial on the lesser included offense of murder, nor (ii) on his claim that the trial court’s jury instructions failed to provide an adequate vehicle for consideration of his constitutionally relevant mitigating evidence. Petitioner applied for certiorari to the Supreme Court. On July 11, 2001, the Supreme Court held that the judgment of this Court should be vacated with costs and “the case is remanded to the United States Court of Appeals for the Fifth Circuit for further consideration in light of Penry v. Johnson, 532 U.S. 782, 121 S.Ct. 1910, 150 L.Ed.2d 9 (2001)” (Penry II). On remand to this Court, we called for supplemental briefing by the parties as to the impact of Penry II on our decisions herein. After careful review of the supplemental briefs, we have concluded that there is no substantial difference between the jury instructions on mitigation given in this case and those given in Penry II. Accordingly, we grant petitioner’s motion for a COA with respect to his jury instruction claims, vacate the district court’s judgment denying Robertson’s application for a federal writ of habeas corpus, and remand the case to the district court. The district court is instructed to grant Robertson’s application for a writ of habeas corpus unless the State of Texas within a reasonable time either (i) grants Robertson a new trial on the issue of punishment only, as permitted by Tex.Code Crim. Proc. art. 44.29(c) or (ii) vacates Robertson’s sentence and imposes a sentence less than death. See Moore v. Johnson, 194 F.3d 586, 622 (5th Cir.1999).

COA GRANTED in part, judgment below VACATED, and case REMANDED to the United States District Court for the Northern District of Texas.

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ON REMAND FROM THE UNITED STATES SUPREME COURT

Before HIGGINBOTHAM, DeMOSS and STEWART, Circuit Judges.

DeMOSS, Circuit Judge:

On December 4, 2000, this Court issued an opinion which held that Mark Robertson, petitioner, was not entitled to a Certificate of Appealability (COA) on (i) his claim that due process required instruction at trial on the lesser included offense of murder, nor (ii) on his claim that the trial court’s jury instructions failed to provide an adequate vehicle for consideration of his constitutionally relevant mitigating evidence. Petitioner applied for certiorari to the Supreme Court. On July 11, 2001, the Supreme Court held that the judgment of this Court should be vacated with costs and “the case is remanded to the United States Court of Appeals for the Fifth Circuit for further consideration in light of Penry v. Johnson, 532 U.S. 782, 121 S.Ct. 1910, 150 L.Ed.2d 9 (2001)” (Penry II). On remand to this Court, we called for supplemental briefing by the parties as to the impact of Penry II on our decisions herein. After careful review of the supplemental briefs, we have concluded that there is no substantial difference between the jury instructions on mitigation given in this case and those given in Penry II. Accordingly, we grant petitioner’s motion for a COA with respect to his jury instruction claims, vacate the district court’s judgment denying Robertson’s application for a federal writ of habeas corpus, and remand the case to the district court. The district court is instructed to grant Robertson’s application for a writ of habeas corpus unless the State of Texas within a reasonable time either (i) grants Robertson a new trial on the issue of punishment only, as permitted by Tex.Code Crim. Proc. art. 44.29(c) or (ii) vacates Robertson’s sentence and imposes a sentence less than death. See Moore v. Johnson, 194 F.3d 586, 622 (5th Cir.1999).

COA GRANTED in part, judgment below VACATED, and case REMANDED to the United States District Court for the Northern District of Texas.

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279 F.3d 1062, 2002 U.S. App. LEXIS 729, 2002 WL 63401, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mark-robertson-v-janie-cockrell-director-texas-department-of-criminal-ca5-2002.

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