Is the Fifth Circuit saying you can waive an 8th Amendment mental retardation claim, thereby resulting in the execution of a mentally retarded person?

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 00-20915

ROBERT JAMES TENNARD,
Petitioner-Appellant,

versus

JANIE COCKRELL, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,
Respondent-Appellee.

Appeal from the United States District Court for the
Southern District of Texas

January 3, 2003

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 No. 02-5164, Tennard v. Cockrell, 123 S.Ct. 70, 71 USLW 3233 (U.S. Oct 07, 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, 122 S.Ct. 2242 (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.
------------------------------------------------------------------------

Dennis, Circuit Judge, dissenting:

Although I agree with the panel majority that Tennard's claim under Atkins v. Virginia, 536 U.S. 304 (2002), is not properly before this court because petitioner did not raise this claim in his district court habeas petition, I continue to dissent from the now restored panel opinion, Tennard v. Cockrell, 284 F.3d 591 (5th Cir. 2002), for the reasons given in my dissent there.

1. Tennard v. Cockrell, 284 F.3d 591 (5th Cir. 2002).

That's the way I read it, John. And I'm pretty sure the AEDPA has some waiver stuff in there that's probably coming into play in this decision. I was kind of hoping someone from the AG's office might respond to this posting since that's more their area of expertise.

Just to follow up, and thinking out loud, if there's not some requirement that defendant's have previously asserted that they're retarded, what's to keep everyone on death row from filing a federal writ claiming they're retarded under Atkins?

I thought the opinion possibly meant that the defendant had not yet raised the issue of mental retardation, leaving it for a subsequent writ.

I read this the same way John did. When the Court said "the issue is not properly before us", it seems like they were giving an invitation to file another writ alleging that as an issue, but that they wouldn't address it until then.

It's just a neat way of telling the Supreme Court there was no need to vacate their original judgment because Tennard raised an issue in his petition for cert. that was not in the case. Whether he can now raise retardation as a collateral issue is governed by an entirely different set of rules and the language of the opinion should not be interpreted as suggesting that course of action be taken or would have merit (or not). Even if you wanted to be more precise or narrow the inferences, how else would you word "not properly before us" in response to the higher court's instruction to consider the issue (as though it were properly before them)?

Here is a good answer to the above question. I received it from a lawyer who works in this area:

An Atkins claim will be available to Tennard in a successive federal petition if the Atkins decision constitutes a "new rule of constitutional law" made retroactive to cases on collateral review. 28 U.S.C. 2244 (b)(2)(A). The Fifth Circuit already said that it does in Bell V. Cockrell. But Tennard would first have to go back into state court and exhaust an Atkins claim by filing a successive petition there before he could present the Atkins claim to the federal courts.

Tennard may yet have an Atkins claim available to him, but he's got a number of procedural hurdles ahead of him. And the handing down of the Atkins decision starts the clock for federal limitations purposes under 28 U.S.C. 2244(d)(1)(C). Tennard still has an opportunity to waive and/or procedurally default the Atkins claim if he does not properly raise and exhaust the claim in a state writ, does not properly raise the claim in the federal district court, or does not timely file his successive federal petition.