Tennard v. Cockrell

Fifth Circuit

Tennard v. Cockrell

317 F.3d 476, 2003 U.S. App. LEXIS 79, 2003 WL 29998

CourtCourt of Appeals for the Fifth Circuit

DecidedJanuary 3, 2003

DocketNo. 00-20915

StatusPublished

Cited by5 cases

This text of 317 F.3d 476 (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.

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Tennard v. Cockrell, 317 F.3d 476, 2003 U.S. App. LEXIS 79, 2003 WL 29998 (5th Cir. 2003).

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ON REMAND FROM THE UNITED STATES SUPREME COURT

Before SMITH, BENAVIDES and DENNIS, Circuit Judges.

BENAVIDES, Circuit Judge:

The Supreme Court of the United States, by order in Tennard v. Cockrell, — U.S. -, 123 S.Ct. 70, 154 L.Ed.2d 4 (2002), granted appellant’s petition for a writ of certiorari, vacated the judgment,¹ and remanded it to us for further consideration in light of Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), which was decided after the issuance of our opinion in this case. In Atkins, the Supreme Court held that the Eighth Amendment prohibits the application of the death penalty to mentally retarded persons. Tennard has never argued that the Eighth Amendment prohibits his execution. Instead, Tennard argued that the jury instructions did not provide a vehicle for giving mitigating effect to his evidence of mental retardation in violation of the Eighth Amendment. Accordingly, because Tennard has not raised the Eighth Amendment claim addressed in Atkins, such a claim is not properly before us. Cf. Smith v. Cockrell, 311 F.3d 661, 684 (5th Cir.2002) (declining to address Atkins claim raised for the first time on appeal); Smith v. Bowersox, 311 F.3d 915, 923 (8th Cir.2002) (declining to address Atkins claim because petitioner did not raise an Eighth Amendment claim in his federal habeas petition).

Accordingly, we reinstate our panel opinion and AFFIRM the district court’s judgment.

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ON REMAND FROM THE UNITED STATES SUPREME COURT

Before SMITH, BENAVIDES and DENNIS, Circuit Judges.

BENAVIDES, Circuit Judge:

The Supreme Court of the United States, by order in Tennard v. Cockrell, — U.S. -, 123 S.Ct. 70, 154 L.Ed.2d 4 (2002), granted appellant’s petition for a writ of certiorari, vacated the judgment,¹ and remanded it to us for further consideration in light of Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), which was decided after the issuance of our opinion in this case. In Atkins, the Supreme Court held that the Eighth Amendment prohibits the application of the death penalty to mentally retarded persons. Tennard has never argued that the Eighth Amendment prohibits his execution. Instead, Tennard argued that the jury instructions did not provide a vehicle for giving mitigating effect to his evidence of mental retardation in violation of the Eighth Amendment. Accordingly, because Tennard has not raised the Eighth Amendment claim addressed in Atkins, such a claim is not properly before us. Cf. Smith v. Cockrell, 311 F.3d 661, 684 (5th Cir.2002) (declining to address Atkins claim raised for the first time on appeal); Smith v. Bowersox, 311 F.3d 915, 923 (8th Cir.2002) (declining to address Atkins claim because petitioner did not raise an Eighth Amendment claim in his federal habeas petition).

Accordingly, we reinstate our panel opinion and AFFIRM the district court’s judgment.

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317 F.3d 476, 2003 U.S. App. LEXIS 79, 2003 WL 29998, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tennard-v-cockrell-ca5-2003.

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