REVISED, July 12, 2000
UNITED STATES COURT OF APPEALS For the Fifth Circuit
___________________________
No. 99-20868 ___________________________
JOHNNY PAUL PENRY
Petitioner-Appellant,
VERSUS
GARY L. JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division,
Respondent-Appellee.
___________________________________________________
Appeal from the United States District Court for the Southern District of Texas, Houston Division ___________________________________________________ June 20, 2000
Before DAVIS, EMILIO M. GARZA, and DENNIS, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge:
Penry filed a motion for a certificate of appealability (COA)
in this § 2254 capital habeas proceeding alleging various
constitutional violations. For the reasons that follow, we deny
his motion.
I
Penry was convicted of capital murder and sentenced to death
in Texas state court for the rape and murder of Pamela Carpenter.
Penry raped Carpenter and stabbed her with a pair of scissors. He
had met her several weeks earlier while helping to install appliances in her home. Penry matched the description Carpenter
gave of her attacker before she died. After being given his
Miranda warnings, Penry gave an oral confession and later a signed
confession to the rape and murder. At trial, Penry offered
mitigating evidence that he was mentally retarded and abused as a
child. He was convicted and sentenced to death. The United States
Supreme Court granted federal habeas relief and vacated his
sentence, holding that Penry’s rights were violated by jury
instructions the trial court gave at the punishment phase of his
trial.1 The court found that none of the three special statutory
questions provided to the jury, under Texas law, allowed the jury
to give effect to Penry’s mitigating evidence. “The jury was never
instructed that it could consider the evidence offered by Penry as
mitigating evidence and that it could give mitigating effect to
that evidence.”2
In the second trial, the trial court followed the Texas
statutory scheme and gave the jury the same three special questions
it had given the jury in the first trial. However, the judge also
provided supplemental instructions directing the jury to consider
any other relevant mitigating evidence and explained how to give
effect to that evidence. Penry was again convicted of capital
murder and sentenced to death. The sentence was again affirmed on
direct appeal3 and state habeas relief was denied. The district
1 Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934 (1989) (“Penry I”). 2 Penry I, 492 U.S. at 320; 109 S.Ct. at 2947. 3 Penry v. State, 903 S.W.2d 715 (Tex. Crim. App. 1995).
2 court also denied Penry’s application for a COA. Penry now seeks
a COA from this court. We granted Penry’s motion for a stay of
execution in order to consider his motion for a COA.
II
A COA may only issue if the petitioner makes a “substantial
showing of the denial of a constitutional right.”4 This burden can
be met if the issues presented “are debatable among jurists of
reason; …a court could resolve the issues in a different manner; or
…the questions are adequate to deserve encouragement to proceed
further.”5
A death sentence alone does not justify the automatic issuance
of a COA, although it is a proper consideration.6 Any doubts as to
whether the COA should issue are to be resolved in the petitioner’s
favor.7
Penry’s petition was filed after the enactment of the
Antiterrorism and Effective Death Penalty Act (AEDPA). Thus, for
questions of law or mixed questions of law and fact adjudicated on
the merits in state court, we may grant federal habeas relief under
28 U.S.C. § 2254(d)(1) only if the state court decision “was
contrary to, or involved an unreasonable application of, clearly
4 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 120 S.Ct. 1595, 1603 (2000); United States v. Kimler, 150 F.3d 429, 431 (5th Cir. 1998). 5 Miller v. Johnson,200 F.3d 274, 280 (5th Cir. 2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4, 103 S.Ct. 3383, 3394 n.4 (1983)); Hicks v. Johnson, 186 F.3d 634, 636 (5th Cir. 1999), cert denied 120 S.Ct. 976 (2000); see also Slack, 120 S.Ct. at 1603-4 (quoting Barefoot v. Estelle, 463 U.S. 880, 893 and n. 4, 103 S.Ct. 3383). 6 Lamb v. Johnson, 179 F.3d 352, 356 (5th Cir. 1999), cert denied 120 S.Ct. 522 (1999). 7 Id.
3 established [Supreme Court precedent].”8 A state court decision is
“contrary to” Supreme Court precedent if: (1) the state court’s
conclusion is “opposite to that reached by [the Supreme Court] on
a question of law” or (2) the “state court confronts facts that are
materially indistinguishable from a relevant Supreme Court
precedent” and arrives at an opposite result.9 A state court
unreasonably applies Supreme Court precedent if: (1) it
unreasonably applies the correct legal rule to the facts of a
particular case or (2) it “unreasonably extends a legal principle
from [Supreme Court] precedent to a new context where it should not
apply or unreasonably refuses to extend that principle to a new
context where it should apply.”10 In deciding whether a state
court’s application was unreasonable, this court considers whether
the application was “objectively unreasonable.”11 We now turn to
Penry’s specific arguments on appeal.
III
Penry first argues that the jury instructions given during the
punishment phase of his trial did not allow the jury to consider
and give effect to mitigating evidence regarding his alleged mental
retardation and severe child abuse; thus, the instructions violated
the Supreme Court’s directive in Penry v. Lynaugh12 (“Penry I”).
Penry explains that jurors could only give effect to his mitigating
8 See Miller, 200 F.3d at 280-81. 9 Williams v. Taylor,. 10 Id. 11 Id. 12 492 U.S. 302, 109 S.Ct. 2934 (1989).
4 evidence, as the Supreme Court required in Penry I, and grant him
a life sentence if they found that the evidence fit under one of
the three special questions required by Texas law.13 In Penry I,
Penry’s federal habeas challenge to his first trial and conviction,
the Supreme Court found that, under the trial court’s instruction,
none of the three special statutory questions allowed the jury to
give effect to Penry’s mitigating evidence. At Penry’s retrial,
however, the trial court supplemented the instruction it gave in
Penry I. The court instructed the jury to consider any mitigating
circumstances supported by the evidence. The instruction stated,
in part:
[W]hen you deliberate on the questions posed in the special issues, you are to consider mitigating circumstances, if any, supported by the evidence…. 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…any mitigating circumstances…you must decide how much weight they deserve, if any, and…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.
13 The three questions were: 1. Was the conduct of the defendant that caused the death of the deceased committed deliberately and with the reasonable expectation that the death of the deceased or another would result? 2. Is there a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society? 3. Was the conduct of the defendant in killing the deceased unreasonable in response to the provocation, if any, by the deceased? Since Penry, the statute has been revised to add a fourth question concerning mitigation.
5 Penry correctly contends that the instruction still required
the jury to give a negative answer to one of the three special
issues in order for Penry to receive a life sentence. Penry argues
that because childhood abuse and mental retardation do not
necessarily fit within the scope of any of the special issues,
this instruction did not allow the jury to give effect to these
mitigating circumstances. However, on direct appeal, the Texas
Court of Criminal Appeals found that the instruction satisfied the
requirements of Penry I and allowed the jury to give effect to
those mitigating circumstances.14
We agree with the district court that the Texas Court of
Criminal Appeals’s holding that the challenged instruction was
constitutional was not an unreasonable application of clearly
established law, namely Penry I. The instruction directed the jury
to consider and give effect to any mitigating circumstances
supported by the evidence by answering “no” to one of the special
issues if they felt a life sentence was appropriate. This
instruction satisfied the deficiency in the trial court’s
instruction identified in Penry I: “[t]he jury was never
instructed that it could consider the evidence offered by Penry as
mitigating evidence and that it could give mitigating effect to
that evidence in imposing sentence.”15
We are not writing on a clean slate on this issue. This Court
14 Penry v. State, 903 S.W.2d 715, 765 (Tex. Crim. App. 1995). 15 Penry I,492 U.S. at 320, 109 S.Ct. at 2947.
6 approved identical jury instructions on this point in Miller16 and
Emery v. Johnson.17 In Miller, we concluded that the defendant
failed to show that the same instructions given by the trial court
in this case violated Penry I. We rejected the argument that the
jury was prevented from considering the mitigating evidence.18
Miller’s jury, unlike Penry’s, was instructed that it should consider mitigating evidence when deliberating on the special issues....[It] was instructed that if it determined when giving effect to the mitigating evidence, if any, that a life sentence rather than a death sentence was an appropriate response to Miller’s personal culpability, a negative finding should be given to the special issue under consideration.19
In the alternative, Penry argues that the jury charge was a
“nullification instruction” and was therefore unconstitutional
insofar as it instructed jurors to violate their oaths by rendering
an untruthful answer to one of the special issues if they wished to
give effect to the mitigating evidence presented in this case. We
disagree. The jury 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.
IV
Next, Penry argues that the admission of certain psychiatric
testimony and evidence offered by the state at trial violated his
Fifth and Sixth Amendment rights.
16 200 F.3d 274. 17 139 F.3d 191 (5th Cir. 1997), cert denied 119 S.Ct. 418 (1998). 18 200 F.3d at 290. 19 Miller, 200 F.3d at 290.
7 A.
Penry’s Fifth Amendment challenge involves three categories of
psychiatric testimony and evidence presented by the state: 1. the
testimony of Dr. Fason admitted during the guilt/innocence phase of
trial; 2. the testimony of Dr. Quijano admitted during the
punishment phase of trial; and 3. the report of Dr. Peebles
describing a court-ordered examination of Penry, which was admitted
at the punishment phase of trial.
1.
Penry’s primary challenge is to the testimony of Dr. Fason.
Penry contends that Fason’s testimony was based on his court-
ordered competency examination of Penry, and that the state’s use
of the testimony to argue future dangerousness during the
punishment phase violated Penry’s rights under Estelle v. Smith.20
More particularly, Penry argues that his Fifth Amendment privilege
against compelled self-incrimination was violated because he was
not advised before Dr. Fason’s examination of his right to remain
silent and that his statements could be used against him at the
sentencing proceeding.
On direct appeal, the Texas Court of Criminal Appeals found
that Dr. Fason’s testimony fell within the Buchanan v. Kentucky21
exception to Estelle. Under Buchanan, if a defendant presents
20 451 U.S. 454, 101 S.Ct. 1866 (1981). Estelle held that the defendant’s Fifth Amendment right against compelled self-incrimination was violated because he was not told that any statements made during his competency exam could be used against him at the punishment phase on the issue of future dangerousness. 21 483 U.S. 402, 107 S.Ct. 2906 (1987).
8 psychiatric evidence, then the prosecution may present rebuttal
psychiatric evidence without violating the Fifth Amendment.
Penry contends that, as applied to this case, proper rebuttal
evidence under Buchanan is limited to evidence tending to prove
that Penry is not mentally retarded and that the state’s evidence
went beyond that scope. After a careful review of the record, we
find that Fason’s testimony did fall within the Buchanan exception.
At the guilt/innocence phase of trial, Penry offered various
psychological records, including reports of his performance on a
number of psychological and IQ tests. The records also included
observations of his emotional status and social behavior. As
demonstrated by the closing argument of Penry’s attorney, one
reason these records were introduced was to lay a predicate for an
argument that Penry’s confessions were not truly voluntary because
Penry is mentally retarded and, thus, submissive to authority
figures. The evidence was also offered to support Penry’s argument
that his mental retardation made him less likely to act with the
intent required for capital murder.
Dr. Fason’s testimony was introduced to rebut these arguments.
Fason testified that Penry had an antisocial personality disorder.
He explained how that condition could affect Penry’s IQ scores, and
that it was possible that Penry was not mentally retarded. Also,
he testified that someone with an antisocial personality disorder
would usually not be easily led by others and would likely
disrespect and rebel against authority. Fason did not discuss any
statements made by Penry during Fason’s examination, except whether
9 Penry was able to identify his attorney at the interview. We
disagree with Penry’s characterization of Fason’s testimony as a
“sham rebuttal” by the state in order to introduce to the jury the
idea that Penry was a “psychopath.” Penry’s defense centered
around his diminished capacity -- his alleged mental retardation at
the time of the offense -- and the idea that his mental status
rendered his confessions involuntary. Therefore, we conclude that
the Court of Criminal Appeals’ determination that Fason’s testimony
was proper rebuttal under Buchanan is neither contrary to nor an
unreasonable application of clearly established federal law.22
2.
In addition to his challenge to Dr. Fason’s guilt phase
testimony, Penry also challenges the court’s admission, at the
punishment phase, of the testimony of Dr. Quijano and the report of
Dr. Peebles as violating Estelle.
At the punishment phase, Penry called various relatives and
neighbors who testified that they believed Penry was mentally
retarded and abused as a child. He also called Dr. Randall Price,
who had reviewed certain portions of Penry’s medical records and
administered various psychological tests to Penry. Dr. Price
concluded that Penry had a brain impairment and was mentally
retarded, and that the mental retardation could have influenced his
involvement in criminal activity. Although he admitted that Penry
22 See Vardas v. Estelle, 715 F.2d 206, 209-10 (5th Cir. 1983) (finding no violation of defendant’s Fifth Amendment privilege because state psychiatrists’ testimony was proper as rebuttal to defendant’s insanity defense; psychiatrists testified that defendant was not insane, but instead was a sociopath.).
10 had an antisocial history, he stated that Penry “looks more like
people with brain damage...than those with antisocial personality.”
In rebuttal, the state called Doctors Quijano and Samenow and
introduced into evidence a number of Penry’s mental health records.
Dr. Quijano conducted a court-ordered competency examination of
Penry. He testified that Penry had an antisocial personality
disorder which made him more likely to be violent in the future.
However, he testified that he based his opinion only on Penry’s
medical records including evaluations by others, and not on his own
examination of Penry. Thus, the Texas Court of Criminal Appeals
found no Fifth Amendment violation. This finding was not contrary
to, nor an unreasonable application of, clearly established federal
law.23
The report of Dr. Peebles was admitted into evidence during
the punishment phase, and was based on Dr. Peebles’s 1977
examination of Penry prior to his trial on an unrelated rape
charge. The report determined that Penry would be dangerous in the
future if released. At the time of Dr. Peebles’s examination,
Penry was not yet in custody on the instant capital charge and,
thus, could not have been warned about the potential use of his
23 See Williams v. Lynaugh, 809 F.2d 1063, 1068 (5th Cir. 1987) (finding no factual basis for Fifth Amendment violation where state psychologist’s testimony on future dangerousness was not based on his interview with the defendant.) See also Hughes v. Johnson, 191 F.3d 607, 616-17 (5th Cir. 1999) (finding reasonable a state court’s conclusion that psychiatrist’s testimony did not violate Estelle, despite his having conducted a prior improper interview, because it did not influence his testimony; also rejecting idea that “taint” of prior improper interview created absolute bar to any expression of opinion by that psychiatrist); cf. Flores v. Johnson, 2000 WL 426212, at *1, * 7 - *13 (5th Cir. April 20, 2000) (Emilio M. Garza, J., specially concurring) (following but questioning Supreme Court authority allowing psychiatric testimony on future dangerousness deduced without examining the defendant).
11 statements at the punishment phase of the capital trial. The Texas
Court of Criminal Appeals found no Fifth Amendment violation
because Penry’s attorney had requested the examination; thus, Dr.
Peebles was acting as an agent of the defense, not of the state in
conducting his examination.24 We cannot say that the court’s
conclusion was unreasonable or contrary to Supreme Court
precedent.25
B.
Penry also argues that his Sixth Amendment right to effective
assistance of counsel was violated by the use of testimony on
future dangerousness from Doctors Quijano and Fason because Penry
and his counsel were told that their examinations of him were
solely for the purpose of determining competency. Under Powell v.
Texas, “once a capital defendant is formally charged, the Sixth
Amendment right to counsel precludes such an examination without
first notifying counsel that ‘the psychiatric examination [will]
encompass the issue of their client’s future dangerousness.’”26 The
Texas Court of Criminal Appeals concluded that Penry’s attorney was
24 Penry, 903 S.W.2d. at 759-60; see Nelson v. State, 848 S.W.2d 126, 135 (Tex. Crim. App. 1992); Estelle, 451 U.S. at 467-68, 101 S.Ct. at 1875-76 (noting that the defendant there did not initiate the examination and was not faced with a person acting solely in his interest). 25 See Buchanan v. Kentucky, 483 U.S. 402, 422-23, 107 S.Ct. 2906, 2917-18 (1987) (finding that “if a defendant requests [the psychiatric] evaluation or presents psychiatric evidence...the prosecution may rebut this presentation with evidence from the reports of the examination that the defendant requested. The defendant would have no Fifth Amendment privilege against the introduction of this psychiatric testimony by the prosecution.”). (Emphasis added); see also Schneider v. Lynaugh, 835 F.2d 570, 577 (5th Cir. 1988) (finding that, under Buchanan, the fact that defendant requested the competency examination militated against the defendant’s assertion of the Fifth Amendment privilege, particularly when defendant had also introduced psychological evidence.). 26 492 U.S. 680, 681, 109 S.Ct. 3146, 3148 (1989) (quoting Estelle, 451 U.S. at 471, 101 S.Ct. at 1877).
12 “on notice that if he intended to put on a ‘mental status’ defense,
he would have to anticipate the use of psychological evidence by
the prosecution in rebuttal.”27 At a pretrial hearing, the trial
court expressly warned Penry’s counsel that the testimony of
Doctors Fason and Quijano might be admissible at trial if the
defense put on psychiatric evidence.28 At trial, Penry argued that
he was mentally retarded; thus, his confessions were involuntary.
He also argued that mental retardation could have been a
contributing cause of Penry’s violent criminal acts and that his
mental retardation mitigated against the imposition of the death
penalty. The state was entitled to rebut this evidence by offering
psychiatric evidence that some condition other than mental
retardation was a more sound explanation for Penry’s conduct.
Thus, the Court of Criminal Appeals’s findings are not contrary to,
nor an unreasonable application of, clearly established federal
law.
V
Penry next contends that his execution would violate the
Eighth Amendment, based on his alleged mental retardation and
severe child abuse. First, Penry makes a general argument that
execution of the mentally retarded is a per se violation of the
Eighth Amendment. We agree with the district court that this claim
is procedurally barred because Penry did not make the argument in
state court. However, even if this claim was not procedurally
27 Penry, 903 S.W.2d at 758. 28 Id. at 759, n. 46.
13 barred, it has been rejected by the Supreme Court.29
Penry also argues that the death penalty would be cruel and
unusual as applied to him personally, because of his mental
retardation and severe childhood abuse. This argument also fails.
On Penry’s direct appeal, the Texas Court of Criminal Appeals
(citing Penry I) concluded that constitutional requirements were
met because the jury was able to consider and give effect to
Penry’s mitigating evidence before determining that the death
sentence was appropriate.30 In Penry’s second trial, he presented
extensive mitigating evidence and the jury was instructed to
consider that evidence and told how to give it effect. More
significantly, although Penry was the individual before the Supreme
Court in Penry I, the Court did not suggest that his execution
would be unconstitutional based on his mental retardation or
childhood abuse. The Texas Court of Criminal Appeals’s conclusion
that Penry’s execution would not violate the Eighth Amendment was
neither contrary to nor an unreasonable application of clearly
established Supreme Court precedent.
VI
Penry makes several other arguments in support of his motion.
He contends that: 1. the trial court violated his rights under
Simmons v. South Carolina31 by excluding his signed statement
waiving any right to parole, while allowing the state to argue
29 See Andrews v. Collins, 21 F.3d 612, 632 (5th Cir. 1994), cert. denied 513 U.S. 1114, 115 S.Ct. 908 (1995) (citing Penry I). 30 Penry, 903 S.W.2d at 766-67. 31 512 U.S. 154, 114 S.Ct. 2187 (1994).
14 future dangerousness; 2. his confessions were taken involuntarily
in violation of the Fifth Amendment; and 3. the jury instructions
at his competency trial were unconstitutionally vague because they
did not define the terms “reasonable,” “rational,” and
“understanding.” We find all of these arguments to be
unpersuasive, essentially for the reasons given by the district
court in its thorough opinion of March 29, 1999.
VII
For the reasons stated above, we deny Penry’s motion for a
certificate of appealability. We also vacate the stay of execution
previously entered by this court.