Tennard v. Cockrell

284 F.3d 591, 2002 U.S. App. LEXIS 3332, 2002 WL 337800
CourtCourt of Appeals for the Fifth Circuit
DecidedMarch 1, 2002
DocketNo. 00-20915
StatusPublished
Cited by27 cases

This text of 284 F.3d 591 (Tennard v. Cockrell) 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.

Bluebook
Tennard v. Cockrell, 284 F.3d 591, 2002 U.S. App. LEXIS 3332, 2002 WL 337800 (5th Cir. 2002).

Opinions

BENAVIDES, Circuit Judge:

Petitioner Robert James Tennard (Ten-nard), convicted of capital murder in Texas and sentenced to death, requests from this Court a Certificate of Appealability (COA) pursuant to 28 U.S.C. § 2253(c)(2). Ten-nard’s sole argument is that the jury was unable to give effect to the mitigating evidence of his mental retardation when answering the special issue with respect to future dangerousness at the punishment phase. Finding that Tennard has not made a substantial showing of the denial of a constitutional right, we DENY the COA.

I. FACTUAL AND PROCEDURAL HISTORY

On October 17, 1985, Tennard was indicted for the capital murder of Larry Neblett (Neblett) committed during the course of a robbery. The following evi[593]*593dence introduced at trial established that Tennard and two others murdered two men during a robbery.1

Tennard lived behind the home of the two victims, and he knew them. The victims had invited Tennard and his two friends into their home approximately fifteen to thirty minutes before they were attacked. Tennard stabbed one of the victims fifteen times with a knife while one of Tennard’s friends killed the other victim with a hatchet. Tennard played a dominant role in disposing of the victims’ stolen property. Tennard presented an alibi defense, and he presented other evidence from which the jury might have concluded that another person possibly could have committed the murders. Based on the above evidence, the jury found him guilty of capital murder.

The evidence from the punishment hearing shows Tennard had been on parole from a felony rape conviction for less than four months when he committed the instant offense. The rape victim testified Tennard and two others forced her into a car while she was at a bus stop. Just after she was forced into the car, Tennard, who was displaying about a foot-and-a-half-long pipe-wrench, threatened to kill her if she moved.

The victim testified Tennard and his friends took her to an abandoned apartment at a government project where Ten-nard forced her to engage in oral, vaginal and anal sex with him. After that, Ten-nard’s two friends took turns sexually assaulting her.

Tennard and his friends then took the victim to another house where he began using drugs and discussing “pimping out” the victim. She asked Tennard if she could go to the restroom to take a bath, which he allowed her to do. She escaped through a window, and Tennard was arrested later that day. The victim testified Tennard appeared to be the leader during her ordeal. Defense counsel impeached the victim’s testimony with a prior statement she made from which the jury could have inferred one of Tennard’s accomplices was the leader.

Tennard’s parole officer testified that a Texas Department of Correction’s (TDC) record from his prior incarceration indicated he had an intelligence quotient (I.Q.) of 67. During cross-examination of this witness, the State introduced the TDC record into evidence. This document appears to have been prepared approximately five years before Tennard committed the capital murder offense, and there is a notation providing Tennard had an I.Q. of 67. However, the parole officer could not say who prepared the report or conducted the I.Q. test. This is all the evidence presented at Tennard’s trial with respect to his “mental retardation.”2 The term “mental retardation” is not mentioned anywhere in this record.

Tennard also introduced evidence that he was twenty-two years of age when he [594]*594committed this offense and that he had spent most of his formative years incarcerated.

At the conclusion of the punishment phase, the jury affirmatively answered the special issues. Pursuant to Texas law, the trial court sentenced him to death. On direct appeal, the Texas Court of Criminal Appeals affirmed the conviction and sentence. Tennard v. State, 802 S.W.2d 678 (Tex.Crim.App.1990), cert. denied, 501 U.S. 1259, 111 S.Ct. 2914, 115 L.Ed.2d 1077 (1991). Tennard filed an application for state habeas relief that ultimately was denied by the Texas Court of Criminal Appeals. Ex parte Tennard, 960 S.W.2d 57 (Tex.Crim.App.1997).

Subsequently, Tennard filed the instant federal habeas petition in district court. The district court denied Tennard’s petition and his request for a COA. Tennard now requests a COA from this Court.

II. ANALYSIS

A. STANDARDS OF REVIEW

Tennard filed his section 2254 application for habeas relief on December 18,1998, which was after the April 24,1996 effective date of the Antiterrorism and Effective Death Penalty Act (AEDPA). His application is therefore subject to the AEDPA. Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 2068, 138 L.Ed.2d 481 (1997). Under the AEDPA, a petitioner must obtain a COA. 28 U.S.C. § 2253(c)(2). A COA will be granted only if the petitioner makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make such a showing, a petitioner “must demonstrate that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.” Barefoot v. Estelle, 463 U.S. 880, 893 n. 4, 103 S.Ct. 3383, 3394 n. 4, 77 L.Ed.2d 1090 (1983) (citation and internal quotation marks omitted). Any doubt regarding whether to grant a COA is resolved in favor of the petitioner, and the severity of the penalty may be considered in making this determination. Fuller v. Johnson, 114 F.3d 491, 495 (5th Cir.1997).

To determine whether a COA should be granted, we must be mindful of the deferential scheme set forth in the AEDPA. Hill v. Johnson, 210 F.3d 481, 484-85 (5th Cir.2000). Pursuant to 28 U.S.C. § 2254(d), we defer to a state court’s adjudication of petitioner’s claims on the merits unless the state court’s decision was: (1) “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States;” or (2) “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” A state court’s decision is deemed contrary to clearly established federal law if it reaches a legal conclusion in direct conflict with a prior decision of the Supreme Court or if it reaches a different conclusion than the Supreme Court based on materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 1519-20, 146 L.Ed.2d 389 (2000). A state court’s decision constitutes an unreasonable application of clearly established federal law if it is objectively unreasonable. Id. at 1521.

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Bluebook (online)
284 F.3d 591, 2002 U.S. App. LEXIS 3332, 2002 WL 337800, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tennard-v-cockrell-ca5-2002.