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ABDUL-KABIR v. QUARTERMAN (No. 05-11284)

Web-accessible at:
http://www.law.cornell.edu/supct/html/5-11284.ZS.html

Argued: January 17, 2007 -- Decided: April 25, 2007 Opinion author: Stevens ===============================================================

Petitioner Abdul-Kabir (fka Cole) was convicted of capital murder. At sentencing, the trial judge asked the jury to answer two special issues, affirmative answers to which would require the judge to impose a death sentence: whether Cole's conduct was committed deliberately and with the reasonable expectation it would result in his victim's death and whether it was probable he would commit future violent acts constituting a continuing threat to society.
Cole's mitigating evidence included family members' testimony describing his unhappy childhood as well as expert testimony which, to some extent, contradicted the State's claim he was dangerous, but primarily sought to reduce his moral culpability by explaining his violent propensities as attributable to neurological damage and childhood neglect and abandonment.
However, the prosecutor discouraged jurors from taking these latter considerations into account, advising them instead to answer the special issues based only on the facts and to disregard any other views as to what might constitute an appropriate punishment for this particular defendant. After the trial judge's refusal to give Cole's requested instructions, which would have authorized a negative answer to either of the special issues on the basis of any evidence the jury perceived as mitigating, the jury answered both issues in the affirmative, and Cole was sentenced to death. The Texas Court of Criminal Appeals (CCA) affirmed on direct appeal, and Cole applied for habeas relief in the trial court, which ultimately recommended denial of the application. Adopting the trial court's findings of fact and conclusions of law with respect to all of Cole's claims, including his argument that the special issues precluded the jury from properly considering and giving effect to his mitigating evidence, the CCA denied Cole collateral relief.

Cole then filed a federal habeas petition, asserting principally that the sentencing jury was unable to consider and give effect to his mitigating evidence in violation of the Constitution.
Recognizing that Penry v. Lynaugh, 492 U. S. 302 (Penry I), required that juries be given instructions allowing them to give effect to a defendant's mitigating evidence and to express their reasoned moral response to that evidence in determining whether to recommend death, the District Court nevertheless relied on the Fifth Circuit's analysis for evaluating Penry claims, requiring a defendant to show a nexus between his uniquely severe permanent condition and the criminal act attributed to that condition. Ultimately, Cole's inability to do so doomed his Penry claim. After the Fifth Circuit denied Cole's application for a certificate of appealability (COA), this Court held that the Circuit's test for determining the constitutional relevance of mitigating evidence had 'no foundation in the decisions of this Court,'
Tennard v. Dretke, 542 U. S. 274 , and therefore vacated the COA denial. On remand, the Fifth Circuit focused primarily on Cole's expert testimony rather than that of his family, concluding that the special issues allowed the jury to give full consideration and full effect to his mitigating evidence, and affirming the denial of federal habeas relief.


Held: Because there is a reasonable likelihood that the state trial court's instructions prevented jurors from giving meaningful consideration to constitutionally relevant mitigating evidence, the CCA's merits adjudication 'resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by [this] Court,' 28 U. S. C. sec. 2254(d)(1), and thereby warranted federal habeas relief. Pp. 10-30.

(a) This Court has long recognized that sentencing juries must be able to give meaningful consideration and effect to all mitigating evidence that might provide a basis for refusing to impose the death penalty on a particular individual, notwithstanding the severity of his crime or his potential to commit similar offenses in the future. See, e.g., the plurality opinion in Lockett v. Ohio, 438 U. S. 586 . Among other things, however, the Lockett plurality distinguished the Ohio statute there invalidated from the Texas statute upheld in Jurek v. Texas, 428 U. S. 262 , on the ground that the latter Act did not 'clearly operat[e] at that time to prevent the sentencer from considering any aspect of the defendant's character and record or any circumstances of his offense as an independently mitigating factor,'
438 U. S., at 607. Nevertheless, the Court later made clear that sentencing under the Texas statute must accord with the Lockett rule. In Franklin v. Lynaugh, 487 U. S. 164 , Justice O'Connor's opinion concurring in the judgment expressed the view of five Justices when she emphasized that 'the right to have the sentencer consider and weigh relevant mitigating evidence would be meaningless unless the sentencer was also permitted to give effect to its consideration' in imposing sentence.' Justice O'Connor's opinion for the Court in Penry I, whichunquestionably governs the facts of this case, endorsed the same views she had expressed in Franklin. In Penry I, the Courtfirst held that in contending that his mental-retardation and abusive-childhood mitigating evidence provided a basis for a life sentence rather than death and that the sentencing jury should have been instructed to consider that evidence, Penrywas not asking the Court to make new law because he was relying on a rule 'dictated' by earlier cases, 492 U. S., at 321, as defined by Justice O'Connor's concurrence in Franklin v. Lynaugh. Applying that standard, Penry I held that neither of Texas' special issues allowed the jury to give meaningful effect to Penry's mitigating evidence. The Penry I Court emphasized with respect to Texas' 'future dangerousness'
special issue (as composed at the time of both Penry's and Cole's sentencing proceedings) that Penry's mitigating evidence functioned as a 'two-edged sword' because it might 'diminish his blameworthiness ... even as it indicate[d] a probability that he [would] be dangerous.' 492 U. S., at 324. The Court therefore required an appropriate instruction directing a jury to consider fully the mitigating evidence as it bears on the extent to which a defendant is undeserving of death. Id., at 323. Thus, where the evidence is double edged or as likely to be viewed as aggravating as it is as mitigating, the statute does not allow it to be given adequate consideration. Pp. 10-20.

(b) The Texas trial judge's recommendation to the CCA to deny collateral relief in this case was unsupported by either the text or the reasoning in Penry I. Under Penry I, Cole's family members' testimony, as well as the portions of his expert testimony suggesting that his dangerousness resulted from a rough childhood and neurological damage, were not relevant to either of the special verdict questions, except, possibly, as evidence of future dangerousness.
Because this would not satisfy Penry I's requirement that the evidence be permitted its mitigating force beyond the special issues' scope, it would have followed that those issues failed to provide the jury with a vehicle for expressing its 'reasoned moral response' to Cole's mitigating evidence.
In denying Cole relief, however, the Texas trial judge relied not on Penry I, but on three later Texas cases and Graham v. Collins, 506 U. S. 461 , defining the legal issue whether the mitigating evidence could be sufficiently considered as one to be determined on a case-by-case basis, depending on the evidence's nature and on whether its consideration was enabled by other evidence in the record. The state court's primary reliance on Graham was misguided. In concluding that granting collateral relief to a defendant sentenced to death in 1984 would require the announcement of a new constitutional rule, the Graham Court, 506 U. S., at 468-472, relied heavily on the fact that in 1984 it was reasonable for judges to rely on the Franklin plurality's categorical reading of Jurek, which, in its view, expressly and unconditionally upheld the manner in which mitigating evidence is considered under the special issues. But in both Franklin and Penry I, a majority ultimately rejected that interpretation.
While neither Franklin nor Penry I was inconsistent with Graham's narrow holding, they suggest that later decisions-including Johnson v. Texas, 509 U. S. 350 , which refused to adopt the rule Graham sought-are more relevant to Cole's case.
The relevance of those cases lies not in their results, but in their failure to disturb the basic legal principle that continues to govern such cases: The jury must have a 'meaningful basis to consider the relevant mitigating qualities' of the defendant's proffered evidence. Id., at 369. Several other reasons demonstrate that the CCA's ruling was not a reasonable application of Penry I. First, the ruling ignored the fact that Cole's mitigating evidence of childhood deprivation and lack of self-control was relevant to his moral culpability for precisely the same reason as Penry's: It did not rebut either deliberateness or future dangerousness but was intended to provide the jury with an entirely different reason for not imposing death. Second, the trial judge's assumption that it would be appropriate to look at other testimony to determine whether the jury could give mitigating effect to Cole's family testimony is neither reasonable nor supported by Penry I. Third, simply because the jury could give mitigating effect to the experts' predictions that Cole should become less dangerous as he aged does not mean that the jury understood it could give such effect to other portions of the experts' testimony or that of other witnesses. Pp. 21-24.

(c) Four of the Court's more recent cases support the conclusion that the CCA's decision was unsupported by Penry I's text or reasoning. Although holding in Johnson, 509 U. S., at 368, that the Texas special issues allowed adequate consideration of petitioner's youth as a mitigating circumstance, the Court also declared that 'Penry remains the law and must be given a fair reading,' ibid. Arguments like those of Cole's prosecutor that the special issues require jurors to disregard the force of evidence offered in mitigation and rely only on the facts are at odds with the Johnson Court's understanding that juries could and would reach mitigating evidence proffered by a defendant. Further, evidence such as that presented by Cole is not like the evidence of youth offered in Johnson and Graham, which easily could have supported a negative answer to the question of future dangerousness, and is instead more like the evidence offered in Penry I, which compelled an affirmative answer to the same question, despite its mitigating significance.
That fact provides further support for the conclusion that in a case like Cole's, there is a reasonable likelihood that the special issues would preclude the jury from giving meaningful consideration to such mitigating evidence, as required by Penry I. In three later cases, the Court gave Penry I the 'fair reading' Johnson contemplated, repudiating several Fifth Circuit precedents providing the basis for its narrow reading of Penry I. Penry v. Johnson, 532 U.
S. 782 (Penry II); Tennard, 542 U. S., at 284; Smith v.
Texas, 543 U. S. 37 . Pp. 25-28.

418 F. 3d 494, reversed and remanded.

Stevens, J., delivered the opinion of the Court, in which Kennedy, Souter, Ginsburg, and Breyer, JJ., joined. Roberts, C. J., filed a dissenting opinion, in which Scalia, Thomas, and Alito, JJ., joined. Scalia, J., filed a dissenting opinion, in which Thomas, J., joined, and in which Alito, J., joined as to Part I.

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BREWER v. QUARTERMAN (No. 05-11287)

Web-accessible at:
http://www.law.cornell.edu/supct/html/5-11287.ZS.html

Argued: January 17, 2007 -- Decided: April 25, 2007 Opinion author: Stevens ===============================================================

Petitioner Brewer was convicted of murder committed during the course of a robber. At sentencing, he introduced mitigating evidence of his mental illness, his father's extensive abuse of him and his mother, and his substance abuse. His counsel made the strategic decision not to present any expert psychological or psychiatric testimony. The trial judge rejected all of Brewer's proposed instructions designed to give effect to the mitigating evidence he presented, instructing the jury instead to answer only two special
issues: whether his conduct was committed deliberately and with the reasonable expectation it would result in his victim's death and whether it was probable he would commit future violent acts constituting a continuing threat to society. In closing argument, the prosecutor emphasized that Brewer's violent response to physical abuse by his father supported an affirmative answer to the 'future dangerousness'
special issue; he deemphasized any mitigating effect such evidence should have, stressing that the jurors lacked the power to exercise moral judgment and, in determining Brewer's sentence, must answer the questions according to the evidence. Ultimately, the jury answered both special issues in the affirmative, and Brewer was sentenced to death. The Texas Court of Criminal Appeals (CCA) affirmed on direct appeal and denied Brewer's application for state postconviction relief. He then filed a federal habeas petition.
Following supplemental briefing concerning Tennard v. Dretke,
542 U. S. 274 , the District Court granted conditional relief, but the Fifth Circuit reversed and rendered its own judgment denying the petition.

Held: Because the Texas capital sentencing statute, as interpreted by the CCA, impermissibly prevented Brewer's jury from giving meaningful consideration and effect to constitutionally relevant mitigating evidence, the CCA's decision denying Brewer relief under Penry v. Lynaugh,
492 U. S. 302 (Penry I), was both 'contrary to' and 'involved an unreasonable application of, clearly established Federal law, as determined [this] Court,' 28 U. S. C. sec. 2254(d).
Pp. 5-9.

(a) Brewer's trial was infected with the same constitutional error that occurred in Penry I, where the Court held that jury instructions that merely articulated the Texas special issues, without directing the sentencing jury 'to consider fully Penry's mitigating evidence as it bears on his personal culpability,' did not provide an adequate opportunity for the jury to decide whether that evidence might provide a legitimate basis for imposing a sentence other than death.
492 U. S., at 323. The Court characterized Penry's mental-retardation and childhood-abuse evidence as a 'two-edged sword' that 'diminish[ed] his blameworthiness for his crime even as it indicat[ed] a probability' of future dangerousness.
Id., at 324. Brewer's mitigating evidence similarly served as a 'two-edged sword.' Even if his evidence was less compelling than Penry's, that does not justify the CCA's refusal to apply Penry I here. It is reasonably likely the jurors accepted the prosecutor's argument to limit their decision to whether Brewer had acted deliberately and was likely a future danger, disregarding any independent concern that his troubled background might make him undeserving of death.
Also unpersuasive is the Fifth Circuit's explanation that Brewer's lack of expert evidence and that court's precedents holding that mental retardation, but not mental illness, can give rise to a Penry I violation prompted the Circuit's reversal of the grant of habeas relief. This Court has never suggested that the question whether the jury could have adequately considered mitigating evidence is a matter purely of quantity, degree, or immutability. Rather, the Court has focused on whether such evidence has mitigating relevance to the special issues and the extent to which it may diminish a defendant's moral culpability for the crime. See id., at 322. Pp. 5-7.

(b) Under the narrowest possible reading of Penry I, Texas'
special issues do not provide for adequate jury consideration of mitigating evidence that functions as a 'two-edged sword.'
The Fifth Circuit's mischaracterization of the law as demanding only that such evidence be given 'sufficient mitigating effect,' and improperly equating 'sufficient effect' with 'full effect,' is not consistent with the reasoning of Penry v. Johnson, 532 U. S. 782 (Penry II), which issued after Penry's resentencing (and before the Fifth Circuit's opinion in this case). Like the 'constitutional relevance'
standard rejected in Tennard, a 'sufficient effect' standard has 'no foundation' in this Court's decisions. 542 U. S., at 284. For the reasons explained in this case and in Abdul-Kabir, ante, p. ___, the Circuit's conclusions that Brewer's mental-illness and substance-abuse evidence could not constitute a Penry violation, and that troubled-childhood evidence may, because of its temporary character, fall sufficiently within the special issues' ambit, fail to heed this Court's repeated warnings about the extent to which the jury must be allowed not only to consider mitigating evidence, or to have such evidence before it, but to respond to it in a reasoned, moral manner and assign it weight in deciding whether a defendant truly deserves death. Pp. 7-9.

442 F. 3d 273, reversed.

Stevens, J., delivered the opinion of the Court, in which Kennedy, Souter, Ginsburg, and Breyer, JJ., joined. Roberts, C. J., filed a dissenting opinion, in which Scalia, Thomas, and Alito, JJ., joined. Scalia, J., filed a dissenting opinion, in which Thomas, J., joined, and in which Alito, J., joined as to Part I.

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SMITH v. TEXAS (No. 05-11304)

Web-accessible at:
http://www.law.cornell.edu/supct/html/5-11304.ZS.html

Argued: January 17, 2007 -- Decided: April 25, 2007 Opinion author: Kennedy ===============================================================

Smith's trial took place in the interim between Penry v.
Lynaugh, 492 U. S. 302 (Penry I),and Penry v. Johnson,
532 U. S. 782 (Penry II). At that time, Texas capital juries were still given the special-issue questions found constitutionally inadequate in Penry I. Texas courts attempted to cure that inadequacy by instructing the jury that if it felt death should not be imposed but also felt the special issues satisfied, it should falsely answer 'no' to one of the special-issue questions, thus nullifying the special issues.
This nullification charge was later found inadequate to cure the special issues in Penry II. Before his trial, Smith objected to the constitutionality of the special issues, but his challenges were denied. At sentencing, Smith's jury received the special issues and the nullification charge. The jury sentenced Smith to death. In his appeal and postconviction state proceedings, Smith continued to argue his sentencing was unconstitutional because of the defects in the special issues. At each stage, the argument was either rejected on the merits, or else held procedurally barred because it had already been addressed on direct appeal. The Texas Court of Criminal Appeals (hereinafter appeals court) affirmed the denial of relief, distinguishing Smith's case from the Penry precedents. This Court reversed, Smith v. Texas, 543 U. S. 37 (per curiam) (Smith I), finding there was Penry error and that the nullification charge was inadequate under Penry II. On remand, the appeals court denied relief once more. Relying on its Almanza decision, it held that Smith had not preserved a Penry II challenge to the nullification charge, since he only made a Penry I challenge at trial;and that this procedural defect required him to show not merely some harm, but egregious harm, a burden he could not meet.

Held:

1. The appeals court made errors of federal law that cannot be the predicate for requiring Smith to show egregious harm. Smith I confirmed that the special issues did not meet constitutional standards and that the nullification charge did not cure that error. The basis for relief was error caused by the special issues, not some separate error caused by the nullification charge. On remand from Smith I, the appeals court mistook this Court's holding as granting relief in light of an error caused by the nullification charge and concluded that Smith had not preserved that claim because he never objected to the nullification charge.
Although Smith's second state habeas petition included an argument that the nullification charge itself prevented the jury from considering his mitigating evidence, that was not the only, or even the primary, argument he presented to the appeals court and this Court. The parties' post-trial filings, the state courts' judgments, and Smith I make clear that Smith challenged the special issues before trial and did not abandon or transform that claim during lengthy post-trial proceedings. Regardless of how the State now characterizes it, Smith's pretrial claim was treated by the appeals court as a Penry challenge to the adequacy of the special issues in his case, that is how this Court treated it in Smith I, and that was the error on which this Court granted relief. The appeals court's misinterpretation of federal law on remand from Smith I cannot form the basis for the imposition of an adequate and independent state procedural bar. Ake v. Oklahoma, 470 U. S. 68 . Pp. 15-17.


2. The state courts that reviewed Smith's case did not indicate that he failed to preserve his claim that the special issues were inadequate in his case. Under the appeals court's application of Almanza, preserved error is subject only to normal harmless-error review. The appeals court has indicated elsewhere that so long there is a reasonable likelihood the jury believed it was not permitted to consider relevant mitigating evidence, the lower Almanza standard is met. Because the state court must defer to this Court's finding of Penry error, which is a finding that there is a reasonable likelihood the jury believed it was not permitted to consider Smith's relevant mitigating evidence, Johnson v. Texas, 509 U. S. 350 , it appears Smith is entitled to relief under the state harmless-error framework. Pp.
18-19.

185 S. W. 3d 455, reversed and remanded.

Kennedy, J., delivered the opinion of the Court, in which Stevens, Souter, Ginsburg, and Breyer, JJ., joined. Souter, J., filed a concurring opinion. Alito, J., filed a dissenting opinion, in which Roberts, C. J., and Scalia and Thomas, JJ., joined.

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JAS