Drinkard v. Johnson ( 1996 )


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  •                  IN THE UNITED STATES COURT OF APPEALS
    
                             FOR THE FIFTH CIRCUIT
    
    
                              ____________________
    
                                  No. 94-20563
                              ____________________
    
    
    RICHARD GERRY DRINKARD,
    
                                                          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
     _______________________________________________________________
                              October 7, 1996
    
    Before JOLLY, WIENER, and EMILIO M. GARZA, Circuit Judges.
    
    E. GRADY JOLLY, Circuit Judge:
    
           Richard Gerry Drinkard, a Texas death row inmate, seeks a
    
    certificate of probable cause ("CPC") to appeal the district
    
    court's denial of his petition for a writ of habeas corpus.
    
    Construing   his   application      for   CPC   as   an   application    for   a
    
    certificate of appealability ("COA") under 28 U.S.C. § 2253, as
    
    amended by section 102 of the Antiterrorism and Effective Death
    
    Penalty Act of 1996 (the "AEDPA"), Pub. L. No. 104-132, 110 Stat.
    
    1214   (1996),   we   grant   the   COA   because    Drinkard   has     made   a
    
    substantial showing of the denial of a constitutional right.
    
           Turning to the merits of his appeal, the central issue we
    
    decide today is whether a special instruction addressing temporary
    insanity       caused   by    intoxication,   which   was   given    during    the
    
    sentencing phase of Drinkard's trial under section 8.04(b) of the
    
    Texas       Penal   Code,    unconstitutionally   prevented    the    jury    from
    
    considering mitigating evidence of intoxication that did not rise
    
    to the level of temporary insanity.               Based on our review of
    
    Drinkard's appeal, we conclude that the special instruction did not
    
    have such an effect.            Alternatively, and in view of the cogent
    
    dissent of Judge Garza, we are compelled to address the question
    
    whether 28 U.S.C. § 2254(d)(1), as amended by section 104(3) of the
    
    AEDPA, applies to our review of Drinkard's appeal.                  Holding that
    
    the AEDPA does apply, we conclude that it bars relief because the
    
    state court's decision on Drinkard's claim was neither "contrary
    
    to, [n]or . . . an unreasonable application of, clearly established
    
    Federal law, as determined by the Supreme Court."             AEDPA, § 104(3)
    
    (to be codified at 28 U.S.C. § 2254(d)(1)).             We therefore affirm
    
    the district court's denial of Drinkard's habeas petition.
    
                                            I
    
         A Texas jury convicted Drinkard of capital murder in the
    
    deaths of Louann Anthony, Ladeen Hendrix, and Jerry Mullins.1
    
    Evidence of Drinkard's intoxication at the time of the murders was
    
    presented at both the guilt and the sentencing phases of his trial.
    
            1
          The three victims were murdered in Ms. Anthony's home. All
    three victims received circular head wounds, consistent with wounds
    inflicted by the head of a carpenter's hammer.        In addition,
    Anthony was stabbed three times in the chest; Hendrix was stabbed
    several times in the back and abdomen; and Mullins was stabbed
    fifteen times in the back.
    
    
    
    
                                           -2-
    At the close of the sentencing phase, the trial court submitted two
    
    special issues to the jury.2   The trial court gave the following
    
    general instruction concerning the two statutory special issues:
    
         [I]n determining each of these Special Issues, you may
         take into consideration all of the evidence submitted to
         you in the full trial of the case, that is, all of the
         evidence submitted to you in the first part of this case
         wherein you were called upon to determine the guilt or
         innocence of the defendant, and all of the evidence, if
         any, admitted before you in the second part of the trial
         wherein you are called upon to determine the answers to
         Special Issues hereby submitted to you.
    
    Over Drinkard's objection, the trial court also gave the following
    
    special instruction after the general instruction:
    
         Evidence of temporary insanity caused by intoxication may
         be introduced by the defendant in mitigation of the
         penalty attached to the offense for which he is being
         tried.   Intoxication means disturbance of mental or
         physical capacity resulting from the introduction of any
         substance into the body. Temporary insanity caused by
         intoxication means that the defendant's mental capacity
         was so disturbed from the introduction of the substance
         into the body that the defendant did not know that his
         conduct was wrong.     Therefore, if you find that the
         defendant at the time of the commission of the offense
    
         2
          At the time of Drinkard's trial, the Texas Code of Criminal
    Procedure required the submission of the following issues to the
    jury:
         (1) whether the conduct of the defendant that caused the
         death of the deceased was committed deliberately and with
         the reasonable expectation that the death of the deceased
         or another would result;
         (2) whether there is a probability that the defendant
         would commit criminal acts of violence that would
         constitute a continuing threat to society; and
         (3) if raised by the evidence, whether the conduct of
         the defendant in killing the deceased was unreasonable in
         response to the provocation, if any, by the deceased.
    TEX. CODE CRIM. PROC. ANN. art. 37.071(b) (West 1981). Since the
    issue of provocation was not "raised by the evidence," the third
    special issue was not submitted to Drinkard's jury.
    
    
    
    
                                   -3-
            for which he is on trial was temporarily insane as a
            result of intoxication, then you may take such condition
            into consideration in mitigation of penalty attached for
            the offense for which the defendant is being tried.3
    
    The jury answered both special issues affirmatively, and the trial
    
    court sentenced Drinkard to death.           On direct appeal, the Texas
    
    Court of Criminal Appeals affirmed.         Drinkard v. State, 
    776 S.W.2d 181
     (Tex. Crim. App. 1989).        Drinkard did not petition the United
    
    States Supreme Court for writ of certiorari.
    
            After   being   denied   habeas   relief   by   the   Texas   Court   of
    
    Criminal Appeals, Drinkard filed a federal habeas petition, along
    
    with a motion to stay his execution.          The district court granted
    
    the motion to stay and ordered the state to respond to Drinkard's
    
    petition.       After Drinkard filed an amended federal petition for
    
    habeas relief, the state filed a motion for summary judgment, and
    
    Drinkard filed a motion for partial summary judgment. The district
    
    court granted the state's motion for summary judgment, denied
    
    Drinkard's motion for partial summary judgment, and vacated the
    
    stay.    Drinkard filed a notice of appeal and a motion for a CPC to
    
    appeal the district court's denial of his petition.              The district
    
    court denied the motion.          Drinkard applied for a CPC with this
    
    court in September 1994, which was carried with this appeal.                  We
    
    granted an emergency motion for stay of execution in December 1995.
    
    
        3
         This instruction was given pursuant to section 8.04(b) of the
    Texas Penal Code, which is a provision applicable to capital and
    non-capital cases in both the guilt and sentencing phases. See
    TEX. PENAL CODE ANN. § 8.04(b) (West 1994).
    
    
    
    
                                          -4-
                                              II
    
            In determining whether a CPC should issue in this case, we
    
    must consider the question in the light of some relevant statutory
    
    amendments under the AEDPA.          Before the President signed the AEDPA
    
    into law on April 24, 1996, a petitioner could not appeal a
    
    district    court's    ruling   on    a    habeas    petition   that   concerned
    
    detention arising from state court proceedings unless a district or
    
    circuit judge issued a CPC.          28 U.S.C. § 2253, amended by AEDPA, §
    
    102; FED.R.APP.P. 22(b), amended by AEDPA, § 103.               In Barefoot v.
    
    Estelle, 
    463 U.S. 880
    , 
    103 S. Ct. 3383
    , 
    77 L. Ed. 2d 1090
     (1983), the
    
    Court stated the standard governing the issuance of a CPC: the
    
    applicant must make "a substantial showing of the denial of a
    
    federal right."      Id. at 893, 103 S.Ct. at 3394-95 (emphasis added).
    
    A "substantial showing" requires the applicant to "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."      Id.    at 893 n.4, 103 S.Ct. at 3394 n.4 (internal
    
    citations and quotation marks omitted).
    
            Section 102 of the AEDPA amended 28 U.S.C. § 2253 to require
    
    that a petitioner obtain a "certificate of appealability" from a
    
    circuit judge.4       AEDPA, § 102 (to be codified at 28 U.S.C. §
    
        4
         There appears to be a discrepancy between the amended version
    of 28 U.S.C. § 2253 and the amended version of Rule 22(b) of the
    Federal Rules of Appellate Procedure. Section 103 of the AEDPA
    amended Rule 22(b) to reflect the change in terminology contained
    
    
    
    
                                              -5-
    2253(c)(1)).   Section 2253 now requires that a circuit judge issue
    
    a COA "only if the applicant has made a substantial showing of the
    
    denial of a constitutional right."    AEDPA, § 102 (to be codified at
    
    28 U.S.C. § 2253(c)(2)) (emphasis added).
    
         The Tenth Circuit recently held that "Congress drafted the
    
    plain language of the newly enacted § 2253(c)(2) to codify the
    
    Barefoot standard for issuance of a certificate of probable cause."
    
    Lennox v. Evans, 
    87 F.3d 431
    , 434 (10th Cir. 1996).      Disagreeing
    
    with the Ninth Circuit's holding in Williams v. Calderon, 
    83 F.3d 281
     (9th Cir. 1996),5 the court explained:
    
         Although the Court [in Barefoot] used the word "federal,"
         an applicant seeking a certificate of probable cause to
         appeal a district court's denial of a § 2254 petition for
         writ of habeas corpus must demonstrate a substantial
         showing of constitutional error underlying the state
         conviction. We have always read the Barefoot standard to
         require a habeas petitioner to make a substantial showing
         of the denial of a federal constitutional right. Indeed,
         in the context of federal habeas review of a conviction
         entered in state court, it is the only intelligible
         reading.
    
    87 F.3d at 434.   We agree with the Tenth Circuit.   Accord Reyes v.
    
    Keane, No. 95-2650, 
    1996 WL 420347
    , at *4 (2d Cir. July 29, 1996).
    
    
    in § 2253. AEDPA, § 103 (to be codified at       FED.R.APP.P. 22(b)).
    Even after the amendment, however, Rule 22(b)    still permits either
    a district or circuit judge to issue a COA,      AEDPA, § 103 (to be
    codified at FED.R.APP.P. 22(b)), as opposed to   only a circuit judge
    under § 2253(c)(1). The posture of this case     obviates the need to
    address this discrepancy.
         5
          The Ninth Circuit concluded summarily that the standard for
    obtaining a certificate of appealability is "more demanding" than
    the Barefoot standard. Id. at 286. The court then "assume[d],
    without deciding, that section 2253(c)(2) does not apply
    retroactively." Id.
    
    
    
    
                                    -6-
    "Because the standard governing the issuance of a certificate of
    
    appealability requires the same showing as that for obtaining a
    
    certificate of probable cause, application of § 102 of the [AEDPA]
    
    to Petitioner's request for a certificate of probable cause would
    
    not constitute retroactive application of a statute under Landgraf
    
    [v. USI Film Products, ___ U.S. ___, 
    114 S. Ct. 1483
    , 
    128 L. Ed. 2d 229
     (1994)]."    87 F.3d at 434.       We will therefore treat Drinkard's
    
    application for CPC as an application for COA.
    
                                           A
    
            Drinkard first argues that the jury instruction concerning
    
    "temporary    insanity   caused   by    intoxication"   given   during   the
    
    penalty phase of his trial violated the Eighth Amendment. Drinkard
    
    contends that the jury charge precluded the jury from considering
    
    evidence of lesser degrees of intoxication in mitigation of his
    
    sentence.6
    
    
    
    
        6
         Although the state argues that we have already considered and
    rejected the challenge that Drinkard raises in this case, our
    review of the cases cited by the state convinces us otherwise. See
    Lackey v. Scott, 
    28 F.3d 486
     (5th Cir. 1994), cert. denied, ___
    U.S. ___, 
    115 S. Ct. 743
    , 
    130 L. Ed. 2d 644
     (1995); Barnard v.
    Collins, 
    958 F.2d 634
    , 639 (5th Cir. 1992), cert. denied, ___ U.S.
    ___, 
    113 S. Ct. 990
    , 
    122 L. Ed. 2d 142
     (1993); James v. Collins, 
    987 F.2d 1116
     (5th Cir.), cert. denied, ___ U.S. ___, 
    114 S. Ct. 30
    , 
    125 L. Ed. 2d 780
     (1993); and Cordova v. Collins, 
    953 F.2d 167
     (5th
    Cir.), cert. denied, 
    502 U.S. 1067
    , 
    112 S. Ct. 959
    , 
    117 L. Ed. 2d 125
    (1992).
    
    
    
    
                                       -7-
                                      (1)
    
         The Eighth Amendment requires an individualized determination
    
    of sentencing in death penalty cases, based on the character of the
    
    defendant, the record of the defendant, and the circumstances of
    
    the offense.     Woodson v. North Carolina, 
    428 U.S. 280
    , 304, 
    96 S. Ct. 2978
    , 2991, 
    49 L. Ed. 2d 944
     (1976) (plurality opinion).         In
    
    Lockett v. Ohio, 
    438 U.S. 586
    , 
    98 S. Ct. 2954
    , 
    57 L. Ed. 2d 973
    
    (1978), the Supreme Court reversed a death sentence on Eighth
    
    Amendment grounds because the Ohio death penalty statute limited
    
    the consideration of mitigating evidence.     According to Lockett, a
    
    statute     cannot   constitutionally   preclude   a   sentencer   "from
    
    considering, as a mitigating factor, any aspect of a defendant's
    
    character or record and any of the circumstances of the offense
    
    that the defendant proffers as a basis for a sentence less than
    
    death."     Id. at 604, 98 S.Ct. at 2964 (plurality opinion).        In
    
    Eddings v. Oklahoma, 
    455 U.S. 104
    , 
    102 S. Ct. 869
    , 
    71 L. Ed. 2d 1
    
    (1982), a majority of the Court embraced Lockett's plurality rule
    
    in striking down a death sentence on Eighth Amendment grounds
    
    because the trial judge limited his consideration of mitigating
    
    evidence.     According to Eddings, a sentencer cannot "refuse to
    
    consider, as a matter of law, any relevant mitigating evidence."7
    
    
        7
         See also Penry v. Lynaugh, 
    492 U.S. 302
    , 319, 
    109 S. Ct. 2934
    ,
    2947, 
    106 L. Ed. 2d 256
     (1989) ("[I]t is not enough simply to allow
    the defendant to present mitigating evidence to the sentencer. The
    sentencer must also be able to consider and give effect to that
    evidence in imposing sentence.").
    
    
    
    
                                      -8-
    Id. at 114, 102 S.Ct. at 877.   The Eddings Court additionally noted
    
    that the trial judge's actions were "as if the trial judge had
    
    instructed the jury to disregard the mitigating evidence."     Id.,
    
    102 S.Ct. at 877.
    
         Drinkard does not, and could not, argue that the Texas special
    
    issues standing alone prevented the jury from considering his
    
    intoxication at the time of the offense.   Lackey v. Scott, 
    28 F.3d 486
    , 489 (5th Cir. 1994) ("[T]he Texas sentencing scheme does not
    
    preclude the jury from giving mitigating effect to evidence of a
    
    defendant's voluntary intoxication at the time of the offense"),
    
    cert. denied, ___ U.S. ___, 
    115 S. Ct. 743
    , 
    130 L. Ed. 2d 644
     (1995);
    
    Cordova v. Collins, 
    953 F.2d 167
    , 170 (5th Cir.) (same), cert.
    
    denied, 
    502 U.S. 1067
    , 
    112 S. Ct. 959
    , 
    117 L. Ed. 2d 125
     (1992); Kelly
    
    v. Lynaugh, 
    862 F.2d 1126
    , 1133 (5th Cir. 1988) (same), cert.
    
    denied, 
    492 U.S. 925
    , 
    109 S. Ct. 3263
    , 
    106 L. Ed. 2d 608
     (1989).
    
    Instead, he challenges the effect of the special instruction on the
    
    special issues. Drinkard argues that the challenged instruction on
    
    "temporary insanity caused by intoxication" prevented the jury from
    
    considering and giving effect to evidence of his intoxication if
    
    the jury concluded that it did not rise to the level of temporary
    
    insanity, evidence that the jury otherwise could have considered
    
    through the two special issues standing alone.8
    
              8
               The prohibition against the announcement of new
    constitutional rules of criminal procedure on collateral review
    contained in the line of cases beginning with Teague v. Lane, 
    489 U.S. 288
    , 
    109 S. Ct. 1060
    , 
    103 L. Ed. 2d 334
     (1989), does not bar
    
    
    
    
                                     -9-
          The    proper         standard     for     reviewing     a     challenged      jury
    
    instruction in the capital sentencing context is "whether there is
    
    a reasonable likelihood that the jury has applied the challenged
    
    instruction        in   a     way    that      prevents     the     consideration      of
    
    constitutionally relevant evidence." Boyde v. California, 
    494 U.S. 370
    , 380, 
    110 S. Ct. 1190
    , 1198, 
    108 L. Ed. 2d 316
     (1990).                              This
    
    "reasonable likelihood" standard does not require the petitioner to
    
    prove   that   the      jury    "more      likely    than    not"    interpreted      the
    
    challenged     instruction          in   an    impermissible       way;   however,    the
    
    petitioner must demonstrate more than "only a possibility" of an
    
    impermissible interpretation.                 Id. at 380, 110 S.Ct. at 1198.           We
    
    must analyze the challenged jury instruction within the context of
    
    the overall jury charge.             Cupp v. Naughten, 
    414 U.S. 141
    , 146-47,
    
    
    94 S. Ct. 396
    , 400, 
    38 L. Ed. 2d 368
     (1973).                         "In evaluating the
    
    instructions, we do not engage in a technical parsing of this
    
    language of the instructions, but instead approach the instructions
    
    in   the    same    way      that    the      jury   would--with      a   `commonsense
    
    understanding of the instructions in the light of all that has
    
    
    relief in this case. Granting the relief Drinkard requests would
    not be a "new rule" under the Teague line of cases because it would
    represent the application of "a well-established constitutional
    principle to govern a case which is closely analogous to those
    which have been previously considered in the prior case law."
    Penry, 492 U.S. at 319, 109 S.Ct. at 2947 (internal quotation marks
    and citation omitted); see also Wright v. West, ___ U.S. ___, ___,
    
    112 S. Ct. 2482
    , 2497, 
    120 L. Ed. 2d 225
     (1992) (O'Connor, J.,
    concurring in judgment) ("If a proffered factual distinction
    between the case under consideration and pre-existing precedent
    does not change the force with which the precedent's underlying
    principle applies, the distinction is not meaningful . . . .").
    
    
    
    
                                                  -10-
    taken place at the trial.'"      Johnson v. Texas, ___ U.S. ___, ___,
    
    
    113 S. Ct. 2658
    , 2669, 
    125 L. Ed. 2d 290
     (1993) (quoting 494 U.S. at
    
    381, 110 S.Ct. at 1198).9
    
                                      (a)
    
         Focusing   initially   on    the    language   of   the   challenged
    
    instruction itself, we conclude that there is not a "reasonable
    
    likelihood" that the jury applied it so as to place consideration
    
    of non-insane intoxication beyond its effective reach.10              The
    
    instruction reads:
    
    
    
        9
         Although parts of the following analysis may appear contrary
    to Johnson's admonition, the dispute between the majority and the
    dissent on the possibility of an impermissible interpretation
    requires our close examination of the challenged instruction. In
    any case, our final conclusion does not rest upon parsing the
    language of the instruction, but instead upon a review of the
    instruction in the context of the instructions and special issues
    as a whole, and in the light of the proceedings before the jury.
            10
           Evidence that Drinkard was intoxicated at the time of the
    murders is clearly "constitutionally relevant."            Evidence
    implicates the Eighth Amendment under Lockett and Eddings if it
    concerns "any of the circumstances of the offense that the
    defendant proffers as a basis for a sentence less than death."
    Lockett, 438 U.S. at 604, 98 S.Ct. at 2964.          As argued by
    Drinkard's counsel, a jury could find that a defendant who was
    intoxicated at the time of the commission of a dangerous offense
    would not be dangerous in prison, where alcohol is not available.
    See Parker v. Dugger, 
    498 U.S. 308
    , 314, 
    111 S. Ct. 731
    , 736, 
    112 L. Ed. 2d 812
     (1991) (stating that evidence that defendant "was under
    the influence of large amounts of alcohol and various drugs . . .
    during the murders” was mitigating evidence); Skipper v. South
    Carolina, 
    476 U.S. 1
    , 5, 
    106 S. Ct. 1669
    , 1671, 
    90 L. Ed. 2d 1
     (1986),
    the Supreme Court held that evidence concerning the defendant's
    good behavior in jail while awaiting trial was mitigating evidence,
    on the theory that a jury could opt to impose life in prison
    instead of a death sentence if convinced that the defendant would
    not be dangerous in prison.
    
    
    
    
                                      -11-
         Evidence of temporary insanity caused by intoxication may
         be introduced by the defendant in mitigation of the
         penalty attached to the offense for which he is being
         tried.   Intoxication means disturbance of mental or
         physical capacity resulting from the introduction of any
         substance into the body. Temporary insanity caused by
         intoxication means that the defendant's mental capacity
         was so disturbed from the introduction of the substance
         into the body that the defendant did not know that his
         conduct was wrong.     Therefore, if you find that the
         defendant at the time of the commission of the offense
         for which he is on trial was temporarily insane as a
         result of intoxication, then you may take such condition
         into consideration in mitigation of penalty attached for
         the offense for which the defendant is being tried.
    
    In attempting to understand the significance of this instruction to
    
    Drinkard's claim of a deprivation of a constitutional right, we
    
    must consider whether there is a reasonable likelihood that this
    
    instruction, within its four corners, actually precluded the jury
    
    from considering Drinkard's non-insane intoxication as a mitigating
    
    factor.     We must first set out, therefore, what the instruction
    
    actually states.
    
         The first sentence clearly indicates that the instruction is
    
    about     temporary   insanity   caused   by    intoxication      not   about
    
    intoxication    in    general.   It   reads    "[e]vidence   of    temporary
    
    insanity caused by intoxication," not "evidence of intoxication."
    
    (Emphasis added.)      The second sentence defines "intoxication" as
    
    the "disturbance of mental or physical capacity resulting from the
    
    introduction of any substance into the body."           According to the
    
    third sentence, "temporary insanity caused by intoxication means
    
    that the defendant's mental capacity was so disturbed from the
    
    introduction of a substance into his body that the defendant did
    
    
    
    
                                       -12-
    not know that his conduct was wrong."                   (Emphasis added.)           The
    
    instruction      concludes,     "Therefore,        if     you     find     that     the
    
    defendant at the time of the commission of the offense for which he
    
    is on trial was temporarily insane as a result of intoxication,
    
    then you may take such condition into consideration in mitigation
    
    of the penalty . . . ." (Emphasis added.)               This concluding sentence
    
    directs the sentencer to take into account a defendant's "temporary
    
    insanity     caused    by   intoxication"    if    it     meets      the   definition
    
    contained in the preceding sentence.
    
         The instruction effectively tells the jury how to go about
    
    evaluating a defendant's claim that, at the time he committed the
    
    crime, his intoxication rendered him temporarily insane; that is,
    
    that because of his temporary insanity caused by intoxication, he
    
    could not have deliberately caused the death of the deceased--a
    
    specific response to the first special issue under the Texas
    
    capital sentencing scheme, which asks whether the conduct was
    
    deliberate and whether it was committed "with the reasonable
    
    expectation     that   the   death   of    the    deceased      or    another     would
    
    result."11     The instruction thus represents a permissible attempt
    
    to structure how the sentencing jury will consider a particular
    
    mitigating     circumstance,     namely,    temporary       insanity       caused    by
    
    intoxication.     See, e.g., Boyde, 494 U.S. at 377, 110 S.Ct. at 1196
    
    (1990) ("States are free to structure and shape consideration of
    
    
         11
              See supra note 2.
    
    
    
    
                                         -13-
    mitigating evidence `in an effort to achieve a more equitable
    
    administration of the death penalty'" (quoting Franklin v. Lynaugh,
    
    
    487 U.S. 164
    , 181, 
    108 S. Ct. 2320
    , 2331, 
    101 L. Ed. 2d 155
     (1988))).
    
    "In other words, the challenged special instruction invited the
    
    jury   affirmatively   to   consider,    as   a   mitigating   factor,   any
    
    evidence that the crime had been committed while Drinkard was
    
    temporarily insane as a result of intoxication."          Dist.Ct.Op., at
    
    36.
    
           Drinkard argues that the use and placement of the term "such
    
    condition" in the fourth sentence of the challenged instruction
    
    plausibly informs a jury that it can only consider intoxication
    
    ("such condition") if it rises to the level of temporary insanity.
    
    We cannot agree, however, that there is a reasonable likelihood
    
    that the jury interpreted the term "such condition" as referring to
    
    the single word, "intoxication." The focus of the instruction from
    
    the first is on "temporary insanity caused by intoxication" as a
    
    mitigating factor, not "intoxication" as a mitigating factor.
    
    Within the concluding sentence itself, "such condition" naturally
    
    refers, as a matter of grammatical construction, to the entire
    
    antecedent phrase, "temporary insanity caused by intoxication."
    
    Thus, we cannot say there is a reasonable likelihood that the jury
    
    interpreted "such condition" as referring to a truncated part of
    
    the preceding phrase, i.e., "intoxication," as opposed to the
    
    entire    antecedent   phrase,    "temporary        insanity    caused    by
    
    intoxication."
    
    
    
    
                                      -14-
         Although       we    cannot    say    that   there   is     not      some     remote
    
    possibility   that the jury, as a whole, could have interpreted the
    
    instruction standing alone so as to preclude consideration of non-
    
    insane intoxication, or that a single, isolated, hypothetical
    
    "reasonable juror" could not have interpreted the instruction in
    
    such a manner,12 these are not the touchstones of our inquiry.
    
    Applying the Boyde standard, we simply cannot say that there is a
    
    reasonable    likelihood           that    the    jury    as     a        whole,    with
    
    "[d]ifferences . . . in interpretation . . . thrashed out in the
    
    deliberative process," Boyde, 494 U.S. at 381, 110 S.Ct. at 1198,
    
    construed     the        instruction       standing      alone       as     precluding
    
    consideration of intoxication that did not rise to the level of
    
    temporary insanity.13
    
        12
          Prior to Boyde's "reasonable likelihood" standard, we judged
    jury instructions in this context by the "reasonable juror"
    standard. See California v. Brown, 
    479 U.S. 538
    , 541, 
    107 S. Ct. 837
    , 839, 
    93 L. Ed. 2d 934
     (1987).
         13
           We are unpersuaded by dicta in Tucker v. State, 
    771 S.W.2d 523
     (Tex. Crim. App. 1988), which suggests that the plain language
    of the special instruction does not allow a jury to consider
    mitigating evidence of intoxication unless it rises to the level of
    temporary insanity. Id. at 534 & n.4. The Texas Court of Criminal
    Appeals itself has not followed this dicta in subsequent cases.
    See, e.g., Ex Parte Rogers, 
    819 S.W.2d 533
    , 536-37 (Tex. Crim. App.
    1991) (Clinton, J., dissenting) (citing Tucker to argue that court
    should have granted petitioner relief because special instruction
    on temporary insanity did not enable jury to give effect to non-
    insane intoxication).
         We are similarly unpersuaded by the dissent in Nethery v.
    Collins, 
    993 F.2d 1154
     (5th Cir. 1993), which argued that the
    special   instruction   precluded   consideration   of   non-insane
    intoxication based on the "reasonable juror" standard.       Id. at
    1163-65 (King, J., dissenting).        Our holding rests on the
    application of the more stringent "reasonable likelihood" standard.
    
    
    
    
                                              -15-
                                    (b)
    
         Turning to the instructions as a whole, Cupp v. Naughten, 414
    
    U.S. at 146-47, 94 S.Ct. at 400, we cannot say that there is a
    
    reasonable likelihood that the jury interpreted the instructions as
    
    precluding the consideration of Drinkard's intoxication if it did
    
    not rise to the level of temporary insanity.            Prior to the
    
    challenged instruction, the trial court clearly and unambiguously
    
    charged the jury to consider all of the evidence in answering the
    
    special issues:
    
         [I]n determining each of these Special Issues, you may
         take into consideration all of the evidence submitted to
         you in the full trial of the case, that is, all of the
         evidence submitted to you in the first part of this case
         wherein you were called upon to determine the guilt or
         innocence of the defendant, and all of the evidence, if
         any, admitted before you in the second part of the trial
         wherein you are called upon to determine the answers to
         Special Issues hereby submitted to you.
    
    (Emphasis   added.)   This   general   instruction    necessarily   and
    
    undeniably directed the jury to consider Drinkard's evidence of
    
    intoxication in answering the special issues.        The fact that the
    
    charge included this affirmative instruction to consider all the
    
    evidence strongly supports our conclusion that there is not a
    
    reasonable likelihood that the jury understood the instructions, as
    
    a whole, as precluding consideration of non-insane intoxication.
    
    
    
    
    Finally, although some language in our recent decision in Rogers v.
    Scott, 
    70 F.3d 340
     (5th Cir. 1995), possibly could be read to
    support a contrary conclusion, id. at 343-44, the court clearly did
    not reach the ultimate question before us today. Id. at 344.
    
    
    
    
                                    -16-
         The inclusion of this general instruction in the charge also
    
    undercuts the possibility of concluding that there is a reasonable
    
    likelihood that the jury interpreted the existence of an explicit
    
    instruction mentioning intoxication in the context of temporary
    
    insanity as implicitly foreclosing the consideration of lesser
    
    forms of intoxication.         In other words, we cannot say that it is
    
    reasonably likely that the jury, instructed to consider "evidence
    
    of temporary insanity caused by intoxication," would interpret this
    
    instruction    as    meaning        that   it     "could   consider     evidence   of
    
    intoxication    only    if     it    produces      temporary   insanity."        This
    
    variation on the canon of statutory interpretation expressio unius-
    
    -mentioning    one     thing    implies         the   exclusion    of      another--is
    
    particularly inapt where the implication of exclusion flies in the
    
    face of an affirmative direction not to exclude consideration of
    
    any evidence. Cf. Blystone v. Pennsylvania, 
    494 U.S. 299
    , 308, 
    110 S. Ct. 1078
    , 1084, 
    108 L. Ed. 2d 255
     (1990) (holding that specific
    
    mitigating     factor    providing          for    consideration      of    "extreme"
    
    disturbance, "substantial" impairment, or "extreme" duress did not
    
    foreclose jury's consideration of lesser degrees of disturbance,
    
    impairment, or duress because trial court "made clear to the jury
    
    that [list of statutory mitigating factors] were merely items it
    
    could consider" and trial court instructed jury that it could
    
    consider "any other mitigating matter").                   Although the Court in
    
    Boyde explicitly distinguished "those instances where we have found
    
    broad descriptions of the evidence to be considered insufficient to
    
    
    
    
                                               -17-
    cure statutes or instructions which clearly directed the sentencer
    
    to disregard evidence," 494 U.S. at 384, 110 S.Ct. at 1200 (citing
    
    Hitchcock v. Dugger, 
    481 U.S. 393
    , 398-99, 
    107 S. Ct. 1821
    , 1824-25,
    
    
    95 L. Ed. 2d 347
     (1987), and Lockett, 438 U.S. at 608, 98 S.Ct. at
    
    2966),14 the challenged instruction in this case did not clearly
    
    direct the sentencer to disregard intoxication for all reasons
    
    except to the extent that it supported temporary insanity caused by
    
    intoxication.
    
                                        (c)
    
         Furthermore, the interplay between the challenged instruction
    
    and the special issues also leads us to conclude that there is not
    
    a reasonable likelihood that the jury applied the challenged
    
    instruction     so   as   to   preclude   consideration   of   non-insane
    
    intoxication.    The challenged instruction, by its own terms and as
    
    a matter of common sense, is relevant only to the first of the two
    
    
        14
          In Hitchcock, the petitioner challenged the jury charge given
    to an advisory jury at the penalty phase of his capital murder
    trial.    The charge, pursuant to Florida statute, listed seven
    specific mitigating factors for the jury to consider. 481 U.S. at
    396 n.3, 107 S.Ct. at 1823 n.3. The judge instructed the jury that
    "`[t]he mitigating circumstances which you may consider shall be
    the following [list of statutory mitigating circumstances].'" Id.
    at 1824, 107 S.Ct. at 1824 (quoting Tr. of Advisory Sentence)
    (second alteration added). The petitioner argued that none of the
    seven factors allowed the jury to consider evidence of his
    background, character, and potential for rehabilitation in
    mitigation of penalty. Id. at 396-98, 107 S.Ct. at 1823-24. The
    Court found that "it could not be clearer that the advisory jury
    was instructed not to consider, and the sentencing judge refused to
    consider, evidence of nonstatutory mitigating circumstances," and
    held that the petitioner's death sentence violated the Eighth
    Amendment. Id. at 398-99, 107 S.Ct. at 1824-25.
    
    
    
    
                                       -18-
    special issues that the jury was required to answer under the Texas
    
    capital sentencing scheme and thus would have no effect on the
    
    jury’s consideration of the second special issue.15
    
            The first special issue requires the jury to look back in time
    
    and     determine      whether     the   defendant       acted   deliberately     in
    
    committing the murder.            Tex. Code Crim. Proc. Ann. art. 37.071(b)
    
    (West 1981) ("[W]hether the conduct of the defendant that caused
    
    the death of the deceased was committed deliberately and with the
    
    reasonable expectation that the death of the deceased or another
    
    would result.").           The second special issue requires the jury to
    
    look        forward   to   the   defendant's    future    dangerousness.        Art.
    
    37.071(b) ("[W]hether there is a probability that the defendant
    
    would commit criminal acts of violence that would constitute a
    
    continuing threat to society."). The challenged instruction itself
    
    asks the jury to consider whether the defendant was temporarily
    
    insane (or, more specifically, "did not know his conduct was
    
    wrong") as a result of intoxication "at the time of the commission
    
    of the offense,"           The focus of the challenged instruction, like
    
    
           15
         The Texas sentencing scheme does not violate the Constitution
    if a jury can give effect to a particular type of mitigating
    evidence only when answering one of the special issues. See Graham
    v. Collins, ___ U.S. ___, ___, 
    113 S. Ct. 892
    , 902, 
    122 L. Ed. 2d 260
    (1993) ("Even it Graham's evidence, like Penry's, had significance
    beyond the scope of the first special issue, it is apparent that
    Graham's evidence--unlike Penry's--had mitigating relevance to the
    second    special    issue    concerning    his    likely   future
    dangerousness. . . . This distinction leads us to conclude that
    neither Penry nor any of its predecessors "dictates" the relief
    Graham seeks within the meaning required by Teague.").
    
    
    
    
                                             -19-
    that of the first special issue, is backward looking to the time of
    
    the offense.     We thus think that it is not reasonably likely that
    
    the jury would have applied the instruction to the second special
    
    issue.   In other words, even if there is a reasonable likelihood
    
    that the jury somehow interpreted the challenged instruction as
    
    removing from its consideration evidence of Drinkard's non-insane
    
    intoxication in answering the first special issue, we cannot say
    
    that there is a reasonable likelihood that the jury applied the
    
    challenged    instruction   to   the    second      special   issue   so   as    to
    
    preclude consideration of evidence of non-insane intoxication in
    
    answering that issue.
    
         As in Boyde, "[e]ven were the language . . . less clear than
    
    we think, the context of the proceedings would have led reasonable
    
    jurors   to    believe   that    evidence      of    [Drinkard's      non-insane
    
    intoxication] could be considered in mitigation" in answering the
    
    second special issue.       494 U.S. at 383, 110 S.Ct. at 1199.                  In
    
    Boyde, the Court pointed to "[a]ll the defense evidence presented
    
    at the penalty phase" to support its conclusion that there was not
    
    a   reasonable    likelihood     that    the     jury    misinterpreted         the
    
    instruction challenged in that case.           Id. at 383-84, 110 S.Ct. at
    
    1199-1200. On the other hand, in Graham, the Court emphasized that
    
    "both of Graham's two defense lawyers vigorously urged the jury to
    
    answer `no’ to the special issues based on the evidence" in denying
    
    habeas relief.    Graham v. Collins, ___ U.S. at ___, ___, 
    113 S. Ct. 892
    , 902, 
    122 L. Ed. 2d 260
     (1993).         Here, as in Graham, we examine
    
    
    
    
                                       -20-
    the context within which the instruction was given--specifically,
    
    the arguments of Drinkard's attorneys--to understand the effect of
    
    the instruction.    Drinkard's two attorneys described in great
    
    detail at the sentencing hearing how the jury could take into
    
    account Drinkard's intoxication.16
    
         At the sentencing hearing, the state waived its right to open.
    
    Thus, Drinkard's attorneys, Mr. Heath and Mr. Taylor, argued first.
    
    Mr. Heath first introduced the subject of intoxication evidence:
    
              I also want you to think about the long talks we had
         about intoxication. Each and every act of wrongdoing
         that Mr. Drinkard has committed since his release from
         the penitentiary at least by 1979 has been related to
         excessive intoxication.    The incidents with his wives
         that were gone into by the State, you think about it.
         Every time the ultimate issue was Mr. Drinkard was
         extremely intoxicated when these occurred.
              The evidence in this particular case was, at least
         by everyone that saw him, was that Mr. Drinkard was
         drinking heavily on the evening in question, and we are
         told in this jury charge that you can consider
         intoxication in mitigation of punishment, and I'm sure
         the first thought that comes to your mind is how are you
         going to do that in this case?
    
    Trial tr., vol. 36, at 5.   Mr. Heath then related the intoxication
    
    evidence to special issue number one, arguing that intoxication had
    
    rendered Drinkard temporarily insane:
    
              . . . Special issue number one talks about a
         deliberate act.    I submit to you))and I'm still not
         convinced Mr. Drinkard by his own hand took all three of
    
            16
              The arguments of counsel are relevant to a jury's
    interpretation of challenged jury instructions, but the court's
    instructions carry substantially more weight. 494 U.S. at 384-85,
    110 S.Ct. at 1200.     To the extent relevant, the arguments of
    counsel must also be analyzed in context. Id. at 385, 110 S.Ct. at
    1200.
    
    
    
    
                                    -21-
         those lives. I'm still not convinced there weren't other
         individuals involved.
              [Objection by the state sustained.]
              But where intoxication to the point of temporary
         insanity comes in is when we talk about an act
         deliberately done. That's what logically comes to mind.
         Mr. Drinkard was drunk to the point of temporary
         insanity.   The State would want you to believe that
         Michael Watson was stumbling drunk that night but not
         Richard Drinkard.    It's amazing.    They spent hours
         together drinking Schnapps, Miller Lite, and then Mr.
         Drinkard topped it off with a Mandrax.
    
    Trial   tr.,   vol.   36,   at   5-6.     Then   Mr.   Heath   related   the
    
    intoxication evidence to special issue number two, arguing that
    
    Drinkard would not be dangerous if not intoxicated:
    
         One thing that you can utilize sitting as a juror is your
         common sense. Common sense dictates that on the night in
         question Mr. Drinkard was drunk out of his mind, and then
         let's talk about this intoxication relationship to all of
         the offenses that Mr. Drinkard has committed. How does
         that tie in to issue number two?      Real simply.    Mr.
         Drinkard is not a dangerous individual when he is not
         intoxicated. I submit to you if Richard Drinkard spends
         a life sentence in the Texas Department of Corrections he
         is not going to get intoxicated, and if he's not
         intoxicated he's not dangerous. Think about it. Every
         offense that these individuals got up on the stand and
         talked about, every offense, a DWI, the BB gun incident,
         all the recent incidents were alcohol and drug-related.
    
    Trial tr., vol. 36, at 6-7.      After discussing other aspects of the
    
    case, Mr. Heath returned to the intoxication evidence to conclude
    
    his argument, again arguing temporary insanity with regard to
    
    special issue number one, and intoxication generally with regard to
    
    special issue number two:
    
         I think the record is clear that Ricky Drinkard was
         temporarily insane on the night in question, and I
         anticipate Mr. Gotschall standing up at sometime and
         arguing how can anyone commit acts like these, and I
         submit to you they can't in their right mind.    Mr.
    
    
    
    
                                       -22-
         Drinkard was not in his right mind that night, and I beg
         each and every one of you to consider the facts and the
         evidence in this case, and if you do you will come to the
         proper conclusion, and that is that the acts were not
         done deliberately by reason of temporary insanity and
         further that if Mr. Drinkard is locked up, not allowed to
         take drugs and not allowed to drink to excess, he will
         not be a continuing threat to society. Thank you.
    
    Trial tr., vol. 36, at 11.   After Mr. Heath concluded his argument,
    
    Mr. Taylor further argued on behalf of Drinkard.        He organized his
    
    discussion of the intoxication evidence in a manner similar to that
    
    argued   by   Mr.   Heath.   First,   he   introduced   the   subject   of
    
    intoxication evidence:
    
              Intoxication, alcohol, drugs is almost at an
         epidemic stage in our society.     It is))constitutes a
         social disease, the toll of which is enormous, not only
         in this case but in society in general. Just look at
         some of the people that have been on this witness stand.
         Look at Jerry Michael Watson. He contributes little or
         nothing to society. He works very little and sits around
         and gets drunk every day. Doug Bailey drinks every day.
              You know, obviously Ricky Drinkard suffers from the
         social disease of alcohol and drugs. From the evidence,
         from Rick's statements you know that on the night in
         question that there were at least two 12-packs of beer.
         Ricky in his statement, which is in evidence, which you
         can read again, stopped off on the way to his brother's
         house, bought a 12-pack of beer. They consumed that.
         They consumed two pints of Schnapps. He went and bought
         another 12-pack of beer. They consumed that. There was
         marijuana. Then there was a Mandrax above all that.
    
    Trial tr., vol. 36, at 13-14.           Mr. Taylor then related the
    
    intoxication evidence to special issue number one, arguing that
    
    intoxication rendered Drinkard temporarily insane:
    
              . . . I suggest to you, as Mr. Heath has talked to
         you about, that there's no way that anybody can consume
         those quantities of alcohol, ingest drugs into their
         system and be conscious of what they're doing, and
    
    
    
    
                                     -23-
         there's no way anyone under those circumstances can
         deliberately do anything.
              The State would have you believe that Ricky Drinkard
         deliberately, intentionally with forethought, went to
         Louann Anthony's townhouse to take the lives of at least
         two individuals, if not three, because they tried to
         elicit testimony that tried to show you that Ricky knew
         not only Louann Anthony would be there but her sister or
         cousin with her boyfriend; and they would have you
         believe he deliberately went there with the idea of
         killing three people.    I suggest to you based on the
         evidence and based on alcohol and drugs there's no way
         that Richard Drinkard could have in a moment of sanity
         been involved in such.
              When you read and look at special issue number one,
         I suggest to you that the only possible answer that this
         jury could put down is "no."
    
    Trial tr., vol. 36, at 14-15.         Mr. Taylor then related the
    
    intoxication evidence to special issue number two, arguing that
    
    Drinkard would not be dangerous if not intoxicated:
    
              . . . Some of the acts that the State brought to you
         in punishment, the burglaries were all done by a young
         man 16 and 17 years of age; and after that the problem
         with Ricky Drinkard has been alcohol and drugs.       Mr.
         Heath))during voir dire you were told that when you read
         these questions, if you get that far, that some of the
         terms are not going to be defined for you. In fact, in
         the two special issues none of the terms are going to be
         defined for you. It's whatever or however you wish to
         define it.
              One of those terms was "society."        It can be
         whatever you want it to be. If Ricky Drinkard by your
         verdict received life imprisonment, his society is going
         to be prison life.
              [Objection by the state overruled.]
              And there are not drugs and there is not alcohol
         available in prison life, and I suggest to you that the
         social disease of alcohol and drugs are not going to be
         available to Ricky Drinkard in the society of prison life
         and that there's no evidence in the record whatsoever
         that would have you answer special issue number two
         "yes."   Take away the drugs.      Take away the social
         disease of alcohol. There's no evidence of violence, and
         I suggest to you that a proper verdict with respect to
    
    
    
    
                                   -24-
         special issue number two would be "no" based on the
         evidence and based on the law in this case.
    
    Trial tr., vol. 36, at 15-16.
    
         Drinkard's   two   attorneys    each   explained   in   great   detail
    
    exactly how the jury could account for intoxication in mitigation
    
    of Drinkard's sentence in answering both special issues.         We think
    
    that their explanations would have led the jury to believe that it
    
    could consider Drinkard's intoxication in answering the second
    
    special issue even if it did not rise to the level of temporary
    
    insanity as defined by the challenged instruction.17         At a minimum,
    
         17
           The prosecutor mentioned the relevance of the intoxication
    evidence to the second issue only in passing.        His focus was
    instead on the intoxication evidence as it related to the first
    special issue:
         The Defense talks to you about this issue of temporary
         insanity due to intoxication, and I suppose that comes in
         mostly))they connected up somehow with both special
         issues, but to consider that at all))and I suggest after
         you look at the evidence you won't consider that at all.
         To consider that at all you have to decide, one, that at
         the time of the deaths Mr. Drinkard was intoxicated.
         This is 3:00 o'clock in the morning. The))Mike Watson
         testified when he dropped his brother off it was around
         midnight or so or when he last saw his brother it was
         around midnight.     There was obviously drinking and
         marijuana smoking and that sort of thing. We don't have
         any doubt that Mr. Drinkard was intoxicated. That's not
         the question.
              You have to decide from the evidence, one, whether
         Mr. Drinkard was intoxicated and, two, that by reason of
         this voluntary intoxication he didn't basically know
         right from wrong, he didn't know what he was doing when
         he killed these three people was wrong. Okay? You might
         find, well, maybe he wouldn't have hit him so many times
         if he wasn't drunk. That doesn't make any difference.
         You have to find that his intoxication rendered him to
         such a state that the defendant))in the charge, the
         defendant did not know that his conduct was wrong, and we
         know that's not true, because look at the evidence as to
    
    
    
    
                                        -25-
    then, we can say that there is not a reasonable likelihood that the
    
    jury applied the instructions so as to preclude consideration of
    
    lesser forms of intoxication in answering the second or "look-
    
    forward" issue.
    
                                      (d)
    
         In sum, our larger task is to assure that all relevant
    
    evidence that Drinkard submitted in mitigation of the death penalty
    
    was within the effective reach of the jury, so that it had some
    
    opportunity to consider that evidence and to give to it whatever
    
    mitigating effect it deemed appropriate.        Reading the challenged
    
    instruction   standing   alone,   in     connection   with   the   general
    
    instruction to consider all the evidence and the special issues
    
    themselves, and, finally, in the light of the proceedings at trial,
    
    specifically, the arguments of Drinkard’s attorneys, we simply
    
    cannot agree with Drinkard that there is a reasonable likelihood
    
    the jury interpreted the instructions in such a way as to exclude
    
    consideration of his non-insane intoxication.
    
    
    what he did after he killed these three people.
    Trial tr., vol. 36, at 22-23 (emphasis added). We do not think
    that this single statement negates the voluminous arguments of
    Drinkard's attorneys concerning intoxication, as it relates to
    answering the second special issue, in determining whether there is
    a reasonable likelihood that the jury interpreted the charge in
    such a way as to preclude consideration of non-insane intoxication.
    See Boyde, 494 U.S. at 385, 110 S.Ct. at 1200 ("`[A] court should
    not lightly infer that a prosecutor intends an ambiguous remark to
    have its most damaging meaning or that a jury, sitting through a
    lengthy exhortation, will draw that meaning from the plethora of
    less    damaging    interpretations.'"    (quoting    Donnelly   v.
    DeChristoforo, 
    416 U.S. 637
    , 647, 
    94 S. Ct. 1868
    , 1873, 
    40 L. Ed. 2d 431
     (1974))).
    
    
    
    
                                      -26-
                                    (2)
    
         While this appeal was pending, the President signed the AEDPA
    
    into law.   Title I of the AEDPA contains a series of amendments to
    
    existing federal habeas corpus law.      The insistence of Judge
    
    Garza's dissent compels an alternative holding in this case, which
    
    requires our determining whether the standards of review for state
    
    court decisions on the merits contained in 28 U.S.C. § 2254(d)(1),
    
    as amended by title I of the AEDPA, § 104(3), applies to our review
    
    of Drinkard's appeal.    Paragraph (d), as now amended, reads as
    
    follows:
    
              (d) An application for a writ of habeas corpus on
         behalf of a person in custody pursuant to the judgment of
         a State court shall not be granted with respect to any
         claim that was adjudicated on the merits in State court
         proceedings unless the adjudication of the claim--
                   (1) resulted in a decision that was 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.
    
    AEDPA, § 104(3) (to be codified at 28 U.S.C. § 2254(d)) (emphasis
    
    added).
    
         The state argues that the new standards of review contained in
    
    subsection (d)(1) apply to all habeas cases pending before us when
    
    the AEDPA was signed into law because they are jurisdictional and
    
    procedural in nature.   On the other hand, Drinkard relies on the
    
    Tenth Circuit's decision in Edens v. Hannigan, No. 94-3352, 
    1996 WL 339763
    , at *8 n.1 (10th Cir. June 20, 1996), and a number of
    
    
    
    
                                   -27-
    district court cases to argue that the standards of review do not
    
    apply to his appeal.18 For the following reasons, we agree with the
    
         18
           We must say that we are unpersuaded by the cases cited by
    Drinkard. The Tenth Circuit in a footnote concluded summarily that
    the new habeas provisions do not apply because only § 107 contains
    an effective date provision. Id. In Grady v. Artuz, No. 94 Civ.
    7362, 
    1996 WL 346332
    , at *26 n.1 (S.D.N.Y. June 24, 1996), the
    court summarily concluded that the new provisions do not apply for
    the same reason. Id. (citing United States v. Trevino, No. 96 C
    828, 
    1996 WL 252570
    , at *2 n.1 (N.D.Ill. May 10, 1996)).         In
    Trevino, the district court concluded that the traditional
    presumption against retroactivity applies because the new
    provisions would have "a truly retroactive effect."        
    1996 WL 252570
    , at *2 n.1 (citing Maitland v. University of Minnesota, 
    43 F.3d 357
    , 363 (8th Cir. 1994)). The court makes no attempt to
    explain why the provision at issue in Maitland, an amendment to
    Title VII barring a person from challenging an action taken
    pursuant to consent decrees if that person had actual notice of a
    proposed consent decree and a reasonable opportunity to
    participate, 43 F.3d at 361, is analogous to the new habeas
    provisions for retroactivity purposes.     Finally, Drinkard cites
    Warner v. United States, No. LR-C-96-220, LR-CR-88-84, 
    1996 WL 242889
    , at *8 n.4 (E.D.Ark. May 10, 1996). The court in Warner
    summarily concluded that the new provisions do not apply
    retroactively because only § 107 contains an effective date
    provision, and thus "[a]ccordingly, the Court need not consider
    what effect, if any, the amendments . . . might have in this case."
    Id. (citations omitted).
         Since Drinkard submitted his supplemental briefing on the
    AEDPA, the Second Circuit has also held that the habeas provisions
    do not apply to cases pending on appeal at the time of the
    enactment of the AEDPA.     Boria v. Keane, No. 95-2688, 
    1996 WL 397290
     (2d Cir. July 17, 1996). We are also unconvinced by the
    Second Circuit's reasoning. The Second Circuit appears to have
    interpreted the following language in the Supreme Court's decision
    in Landgraf v. USI Film Products, ___ U.S. ___, ___, 
    114 S. Ct. 1483
    , 1499, 
    128 L. Ed. 2d 229
     (1994), as requiring an outcome-
    determinative test to ascertain retroactivity: "[T]he court must
    ask whether the new [statute] attaches new legal consequences to
    events completed before its enactment."        The Second Circuit
    declared with no analysis, "Assuming . . . that the new statute
    would require a different outcome [in this case], application of
    the new statute to these circumstances would be retroactive." 
    1996 WL 397290
    , at *1.      Once it determined that the statute was
    retroactive, the court looked for a "clear signal from Congress"
    that the habeas provisions were to apply retroactively. Id. at *2.
    
    
    
    
                                   -28-
    state and hold that the new standards of review contained in
    
    § 2254(d)(1) apply to our review of Drinkard's appeal.19
    
                                           (a)
    
         Landgraf v. USI Film Products, ___ U.S. ___, 
    114 S. Ct. 1483
    ,
    
    
    128 L. Ed. 2d 229
     (1994), provides the framework for answering the
    
    retroactivity question presented in this case.          There, the Supreme
    
    Court addressed the circumstances under which statutory amendments
    
    apply     to   lawsuits   based   on     events   occurring   before   those
    
    
    Finding none, the court held that the new habeas provisions did not
    apply to the case before it.     Id.   The Second Circuit, in one
    sentence, reduced the Supreme Court's extended attempt in Landgraf
    "to reconcile two seemingly contradictory statements found in our
    decisions concerning the effect of intervening changes in the law,"
    ___ U.S. at ___, 114 S.Ct. at 1496, to a simple test: if an
    intervening change in the law alters the outcome of a case before
    a court, it does not apply retroactively unless Congress has given
    some "clear signal" to the contrary.       As much as the Second
    Circuit's proffered test would happily simplify the task facing
    courts in this area, it is not a correct synthesis of the
    applicable law. See infra.
         19
          The Seventh Circuit utilized an analysis similar to the one
    that follows and reached this same conclusion in Lindh v. Murphy,
    ___ F.3d ___, No. 95-3608, 
    1996 WL 517290
     (7th Cir. Sept. 12,
    1996)(en banc). In Lindh, the Seventh Circuit first found that the
    AEDPA amendment to the federal habeas corpus provision lacked an
    effective date provision and so should be given effect with respect
    to pending appeals in the absence of any retroactive impact. Id.
    at *4.   The court then held that under Landgraf’s established
    framework for determining retroactivity of a statute, the
    amendments were not retroactive and thus should be applied to cases
    pending on appeal at the time of the passage of the AEDPA. Id. at
    *9. Specifically, the court concluded that the amendments did not
    “impair rights a party possessed when he acted, increase a party’s
    liability for past conduct, or impose new duties with respect to
    transactions already completed,” thus, the court found that the
    habeas provision, as amended, controlled consideration of the
    pending habeas petition. Id. (citing Landgraf v. USI Film Prods.,
    
    114 S. Ct. 1483
    , 1505 (1994)).
    
    
    
    
                                           -29-
    amendments.20     The Court declared that when Congress has not
    
    "expressly    prescribed   the   statute's   proper   reach,"   we   must
    
    determine whether the new statute has a "retroactive effect," ___
    
    U.S. at ___, 114 S.Ct. at 1505, that is, "whether the new provision
    
    attaches new legal consequences to events completed before its
    
    enactment."     ___ U.S. at ___, 114 S.Ct. at 1499.    In other words,
    
    the question is "whether [the statute] would impair rights a party
    
    possessed when he acted, increase a party's liability for past
    
    conduct, or impose new duties with respect to transactions already
    
    completed."     ___ U.S. at ___, 114 S.Ct. at 1505.     If we conclude
    
    that the statute does not have a retroactive effect, we should
    
    apply the new statute in rendering a decision in the case before
    
    us. ___ U.S. at ___, ___, 114 S.Ct. at 1501, 1505.
    
                                       (b)
    
         Because Congress has not "expressly prescribed" the reach of
    
    the new habeas standard of review contained in § 2254(d)(1), as
    
    amended by § 104(3) of the AEDPA, Reyes v. Keane, No. 95-2650, 
    1996 WL 420347
    , *3 (2d Cir. July 29, 1996), we must turn to determine
    
    
         20
           In Landgraf, the Supreme Court was attempting to harmonize
    "two seemingly contradictory statements in [its] decisions
    concerning the effect of intervening changes in the law." Id. at
    1496. In Bradley v. School Board of City of Richmond, 
    416 U.S. 696
    , 711, 
    94 S. Ct. 2006
    , 2016, 
    40 L. Ed. 2d 476
     (1974), the Court
    declared, "[A] court is to apply the law in effect at the time it
    renders its decision." In Bowen v. Georgetown University Hosp.,
    
    488 U.S. 204
    , 208, 
    109 S. Ct. 468
    , 471, 
    102 L. Ed. 2d 493
     (1988), the
    Court declared, "[C]ongressional enactments and administrative
    rules will not be construed to have retroactive effect unless their
    language requires this result." (Citations omitted).
    
    
    
    
                                      -30-
    whether the new standards of review contained in § 2254(d)(1), as
    
    amended by the AEDPA, have a retroactive effect in this case.                          The
    
    Court in Landgraf explained, "The conclusion that a particular rule
    
    operates `retroactively' comes at the end of a process of judgment
    
    concerning the nature and extent of the change in the law and the
    
    degree of connection between the operation of the new rule and a
    
    relevant past event."              ___ U.S. at ___, 114 S.Ct. at 1499.                 The
    
    change    in     law    at    issue   here    has     no   plausible    connection      to
    
    Drinkard's conduct on the night of the murder.                         Drinkard cannot
    
    argue     that    the        new   standards     of    review       attach    new   legal
    
    consequences to that conduct by increasing his liability for that
    
    conduct or by imposing new duties on him based on that conduct.                         In
    
    other words, Drinkard obviously cannot argue that he relied on the
    
    existence of federal de novo review of claims adjudicated on the
    
    merits in state court proceedings the night he killed his three
    
    victims. This provision instead speaks to the power of the federal
    
    courts to grant habeas relief to state prisoners.
    
         As standards of review governing our own review of Drinkard's
    
    appeal, subsection (d)(1) is easily classified as procedural in
    
    nature.     Cf. United States v. Mejia, 
    844 F.2d 209
    , 211 (5th Cir.
    
    1988) (citation omitted) ("A change in the standard of review is
    
    properly       characterized        as   procedural        rather    than    substantive
    
    because    it     neither      increases      the     punishment     nor     changes   the
    
    elements of the offense or the facts that the government must prove
    
    at trial.").           Pointing to "the diminished reliance interest in
    
    
    
    
                                                 -31-
    matters of     procedure"   and   the   fact    that   "rules    of   procedure
    
    regulate secondary rather than primary conduct," ___ U.S. at ___,
    
    114 S.Ct. at 1502, the Court in Landgraf recognized that "[c]hanges
    
    in procedural rules may often be applied in suits arising before
    
    their enactment without raising concerns about retroactivity." ___
    
    U.S. at ___, 114 S.Ct. at 1502.
    
          Here, the change in procedural rules governing federal habeas
    
    review raises no concerns of retroactivity.            Because the new rules
    
    involve federal standards of review of state court decisions,
    
    Drinkard must be able to show that he relied to some extent on the
    
    former federal standards of habeas review in making strategic,
    
    tactical, or other decisions during the state court litigation.
    
    Although during his state post-conviction proceedings, Drinkard may
    
    well have expected that the federal courts would review claims
    
    adjudicated on the merits in those proceedings de novo, "[a]
    
    statute does not operate `retrospectively' merely because it is
    
    applied in a case arising from conduct antedating the statute's
    
    enactment, or upsets expectations based in prior law." ___ U.S. at
    
    ___, 114 S.Ct. at 1499 (internal citation and footnote omitted).
    
    In   short,   Drinkard   cannot   argue   credibly     that     he   would   have
    
    proceeded     any   differently   during       his   state    post-conviction
    
    proceedings had he known at the time of those proceedings that the
    
    federal courts would not review claims adjudicated on the merits in
    
    the state court proceedings de novo.           Because the new standards of
    
    review do not have a retroactive effect, we hold that they apply to
    
    
    
    
                                       -32-
    our review of Drinkard's appeal from the district court's denial of
    
    his petition for writ of habeas corpus.        We thus turn to the task
    
    of applying these new standards to Drinkard's appeal.
    
                                      (3)
    
         Drinkard turns the task of statutory interpretation on its
    
    head by   arguing   summarily   that    §   2254(d)(1),   as   amended,   is
    
    essentially only a codification of Teague v. Lane, 
    489 U.S. 288
    ,
    
    
    109 S. Ct. 1060
    , 
    103 L. Ed. 2d 334
     (1989), and thus constitutes no
    
    change in federal habeas law.21    Instead, "[a]s with any statutory
    
    question, we begin with the language of the statute."            Matter of
    
    Greenway, 
    71 F.3d 1177
    , 1179 (5th Cir.) (citation omitted), cert.
    
    denied sub nom., Boyce v. Greenway, ___ U.S. ___, 
    116 S. Ct. 2499
    ,
    
    
    135 L. Ed. 2d 191
     (1996).
    
                                      (a)
    
         Subsection (d) limits the ability of the federal courts to
    
    grant habeas relief to state prisoners:
    
    
        21
          We see more than a little irony in the suggestion that, after
    all the years of failed attempts by Congress to adopt a deferential
    standard of review in this area, Wright v. West, ___ U.S. at ___
    n.9, 112 S.Ct. at 2491 n.9 (opinion of Thomas, J.); ___ U.S. at
    ___, 112 S.Ct. at 2498 (O'Connor, J., concurring in judgment), the
    passage of subsection (d)(1) represents no more than the
    codification of existing Supreme Court precedent, the meaning of
    which even the Supreme Court at times has difficulty explaining in
    a coherent manner. See, e.g., Wright (exhibiting three different
    interpretations of the Teague line of cases in five opinions, none
    of which received a majority). We will not complicate the task of
    statutory interpretation before us by turning first to the
    murkiness that is Teague retroactivity doctrine to determine
    whether the language of the statute somehow parallels Supreme Court
    precedent in this area.
    
    
    
    
                                      -33-
               (d) An application for a writ of habeas corpus on
          behalf of a person in custody pursuant to the judgment of
          a State court shall not be granted with respect to any
          claim that was adjudicated on the merits in State court
          proceedings unless the adjudication of the claim--
                    (1) resulted in a decision that was 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.
    
    AEDPA, § 104(3) (to be codified at 28 U.S.C. § 2254(d)) (emphasis
    
    added).     It applies when a state prisoner is seeking relief on the
    
    basis of a "claim that was adjudicated on the merits in State court
    
    proceedings." A federal court may grant habeas relief on the basis
    
    of   such   a   claim   only   if   the   "decision"   resulting   from   that
    
    adjudication (1) "was contrary to . . . clearly established Federal
    
    law, as determined by the Supreme Court of the United States," or
    
    (2) "involved an unreasonable application of[] clearly established
    
    Federal law, as determined by the Supreme Court of the United
    
    States."     Because a decision that is "contrary to" law is in some
    
    sense a decision "involv[ing] an unreasonable application of" law,
    
    the language of subsection (d)(1) on its face suggests at least one
    
    reading that would render the first clause a nullity.          We, however,
    
    must read these two clauses in such a way as to give effect to
    
    both.   United States v. Nordic Village, Inc., 
    503 U.S. 30
    , 36, 
    112 S. Ct. 1011
    , 1015, 
    117 L. Ed. 2d 181
     (1992).
    
          Our analysis of these two clauses begins with the fundamental
    
    proposition that judicial decisions rest on answers to one or more
    
    
    
    
                                          -34-
    of three types of questions:       questions of law, questions of fact,
    
    and mixed questions of law and fact (i.e., questions that require
    
    the application of law to facts).        In order properly to understand
    
    section (d)(1), it should be read in conjunction with subsection
    
    (d)(2).    See United Sav. Ass'n of Texas v.            Timbers of Inwood
    
    Forest Associates, 
    484 U.S. 365
    , 371, 
    108 S. Ct. 626
    , 630, 
    98 L. Ed. 2d 740
       (1988)    (indicating     that   we   must   read    statute
    
    holistically, interpreting each of its portions in light of other
    
    portions).   Although not at issue in this case, subsection (d)(2)
    
    of § 2254 applies to a state court's factual determinations.               It
    
    bars federal court relief if the state court adjudication of the
    
    claim "resulted in a decision that was based on an unreasonable
    
    determination of the facts in light of the evidence."                AEDPA, §
    
    104(3) (to be codified at 28 U.S.C. § 2254(d)(2)).               Subsection
    
    (d)(2) thus supplies the applicable standard of review for the
    
    second type of question--a question of fact.           It is clear to us,
    
    therefore, when the statute is read holistically, that subsection
    
    (d)(1) provides standards of review for questions of law and mixed
    
    questions of law and fact.
    
         The second clause of subsection (d)(1), by its own language,
    
    refers to mixed questions of law and fact because it speaks of an
    
    "unreasonable application of[] clearly established law."                Thus,
    
    when reviewing a mixed question of law and fact, a federal court
    
    may grant habeas relief only if it determines that the state court
    
    decision   rested   on    "an   unreasonable   application    of[]    clearly
    
    
    
    
                                        -35-
    established Federal law, as determined by the Supreme Court," to
    
    the facts of the case.           We read the first clause, on the other
    
    hand, as referring to questions of law.          When reviewing a purely
    
    legal question, a federal court may grant habeas relief only if it
    
    determines    that   a   state    court's   decision   rested     on    a   legal
    
    determination that was "contrary to . . . clearly established
    
    Federal law, as determined by the Supreme Court."                      Thus, the
    
    standard of review will vary depending on whether the question
    
    before the federal court is one of fact, one of law, or mixed.
    
         With this understanding of the language of subsection (d)(2),
    
    we now proceed to apply it to Drinkard's appeal.
    
                                          (b)
    
         In applying § 2254(d)(1), as amended by the AEDPA, we must
    
    first determine whether Drinkard's claim regarding the challenged
    
    instruction    during    the     sentencing   phase    of   his    trial      was
    
    adjudicated on the merits in state court proceedings.              Our review
    
    of the state post-conviction record indicates that there is no
    
    question that this claim was in fact adjudicated on the merits.
    
    Drinkard's petition for habeas relief in the state trial court
    
    challenged, inter alia, this instruction.             The claim appeared in
    
    the state trial court's order designating issues as one of five
    
    that "this Court will resolve."         The trial court entered findings
    
    of fact and conclusions of law, recommending to the Texas Court of
    
    Criminal Appeals that it should deny relief.           In conclusion of law
    
    number 29, the court held:
    
    
    
    
                                         -36-
         The trial court's instruction on the law of temporary
         insanity as a result of intoxication was sufficient to
         allow the jury to consider such in mitigation of
         punishment; evidence, if any, of voluntary intoxication
         could be given full mitigating effect within the scope of
         the special issues without additional jury instructions.
         Moreover, the trial court's charge on the law of
         temporary insanity as a result of intoxication did not
         preclude the jury from considering other types of
         mitigating   evidence,   did   not   mandate   additional
         instructions, and did not impermissibly limit the jury's
         consideration of the applicant's alleged voluntary
         intoxication by requiring that it rise to the level of
         temporary insanity.
    
    (Internal citations omitted). The Court of Criminal Appeals denied
    
    relief based on "the findings and conclusions of the trial court."22
    
         We now must apply the new standards of review to determine
    
    whether we are permitted to grant relief to Drinkard under the
    
    AEDPA.     The first question we ask is whether the state court's
    
    resolution of any legal questions underlying its decision on this
    
    claim was contrary to clearly established federal law.        It is clear
    
    from conclusion of law number 29 that the state court made               no
    
    error involving purely legal questions.            The court correctly
    
    determined    the   law   applicable     to   Drinkard's   claim--that    a
    
    sentencing jury cannot be precluded from considering any relevant
    
    mitigating evidence.      Lockett; Eddings.     We thus cannot say that
    
    the decision of state court was "contrary to" clearly established
    
    law as determined by the Supreme Court.
    
    
    
          22
           In his brief to this court, Drinkard himself admits that
    "the Texas courts clearly addressed the merits of the claim"
    concerning the challenged instruction.
    
    
    
    
                                      -37-
          The next question before us is a mixed question of law and
    
    fact.   In specific terms, we must decide whether the state court's
    
    determination--that the special instruction on temporary insanity
    
    caused by intoxication did not place beyond the reach of the jury's
    
    consideration the mitigating evidence of intoxication--involved an
    
    unreasonable application of this law to the facts of this case.
    
          This "unreasonable application" standard of review of a state
    
    court decision must mean more than that a federal court may grant
    
    habeas relief based on its simple disagreement with the state court
    
    decision; this would amount to nothing more than a de novo review.
    
    See   H.R.Conf.Rep.No.     518,     104th      Cong.,    2d    Sess.   111   (1996),
    
    reprinted in 1996 U.S.C.C.A.N. 944, 944 (indicating in no uncertain
    
    terms that § 2254(d)(1) "requires deference to the determinations
    
    of    state   courts     that     are    neither      `contrary    to,'      nor   an
    
    `unreasonable application of,' clearly established federal law"
    
    (emphasis     added)).      The    use    of    the     word   "unreasonable"      in
    
    formulating this restrictive standard of review implicitly denotes
    
    that federal courts must respect all reasonable decisions of state
    
    courts.     Thus, given the statutory language, and in the light of
    
    legislative history that unequivocally establishes that Congress
    
    meant to enact deferential standards, we hold that an application
    
    of law to facts is unreasonable only when it can be said that
    
    reasonable jurists considering the question would be of one view
    
    that the state court ruling was incorrect.                In other words, we can
    
    
    
    
                                            -38-
    grant habeas relief only if a state court decision is so clearly
    
    incorrect that it would not be debatable among reasonable jurists.
    
         In this case, the majority has applied the law of Lockett and
    
    Eddings, using the Boyde reasonable likelihood standard, to the
    
    specific facts of this case, analyzing the special instruction
    
    standing alone and in conjunction with the general instruction, the
    
    special issues, and the arguments of counsel.           The majority has
    
    unequivocally concluded that the instruction at issue did not place
    
    mitigating evidence of intoxication beyond the reach of the jury.
    
    Judge Garza, on the other hand, has concluded that the challenged
    
    instruction removed the mitigating evidence of intoxication from
    
    the jury's   consideration.   It       follows   that   when   the   jurists
    
    considering the state court ruling disagree in this manner, the
    
    application of the law by the state court is not unreasonable.           The
    
    AEDPA therefore bars us from granting relief to Drinkard on this
    
    claim.
    
                                       B
    
         Drinkard also contends that the trial court should have
    
    instructed the jury to consider convicting him on a lesser-included
    
    offense.   A defendant is entitled to a lesser-included offense
    
    instruction only if the evidence warrants such an instruction.
    
    Beck v. Alabama, 
    447 U.S. 625
    , 635-38, 
    100 S. Ct. 2382
    , 2388-90, 
    65 L. Ed. 2d 392
     (1980); Cordova v. Lynaugh, 
    838 F.2d 764
    , 767 (5th
    
    Cir.), cert. denied, 
    486 U.S. 1061
    , 
    108 S. Ct. 2832
    , 
    100 L. Ed. 2d 932
    
    (1988). To support such a claim, a petitioner must make "a showing
    
    
    
    
                                   -39-
    that the facts of the case and the laws of the State warrant such
    
    an instruction."     Andrews v. Collins, 
    21 F.3d 612
    , 629 (5th Cir.
    
    1994), cert. denied, ___ U.S. ___, 
    115 S. Ct. 908
    , 
    130 L. Ed. 2d 790
    
    (1995). Drinkard makes no showing on appeal that such evidence was
    
    produced at trial.    Accordingly, we find this claim to be without
    
    merit.23
    
                                      C
    
         Although Drinkard also challenged the constitutionality of the
    
    trial court's jury instruction regarding voluntary intoxication
    
    given during the guilt-innocence phase of his trial,24 he conceded
    
    in supplemental briefing to this court that "the U.S. Supreme
    
    Court's recent decision in Montana v. Egelhoff, [___ U.S. ___, 
    116 S. Ct. 2013
    , 
    135 L. Ed. 2d 361
     (1996)], forecloses [his] challenge to
    
         23
           Drinkard also challenges the factfinding procedure used by
    the state habeas court.     However, as counsel conceded at oral
    argument, none of the claims addressed in this appeal turn on
    factual findings. Accordingly, any errors in the state's factual
    findings did not prejudice Drinkard.
         Drinkard raised other claims before the district court, but
    failed to brief them on appeal.       He instead requested us to
    "consider the discussion of all claims and arguments contained in
    prior pleadings." Whether we consider issues not briefed on appeal
    is a matter of discretion. Compare Black v. Collins, 
    962 F.2d 394
    ,
    399 (5th Cir.) (addressing arguments made in district court even
    though not obligated to do so), cert. denied, 
    504 U.S. 992
    , 
    112 S. Ct. 2983
    , 
    119 L. Ed. 2d 601
     (1992) with Hobbs v. Blackburn, 
    752 F.2d 1079
    , 1083 (5th Cir.) (refusing to review "matters [that] have
    not been cited as error on appeal and have not been briefed"),
    cert. denied, 
    474 U.S. 838
    , 
    106 S. Ct. 117
    , 
    88 L. Ed. 2d 95
     (1985).
    We find Drinkard's non-briefed claims to be without merit, and we
    decline to address them further.
         24
          As required by § 8.04(a) of the Texas Penal Code, the trial
    court instructed the jury that "[v]oluntary intoxication does not
    constitute a defense to the commission of a crime."
    
    
    
    
                                     -40-
    Tex.Pen.Code sec. 8.04(a), under the Due Process Clause of the
    
    Fourteenth Amendment."25
    
                                   III
    
         To sum up, we hold today that the standard for granting a
    
    certificate of appealability under the AEDPA is the same as the
    
    Barefoot standard for granting a CPC.   Because Drinkard has made a
    
    substantial showing of the denial of a constitutional right with
    
    respect to the application of the special instruction on temporary
    
    insanity caused by intoxication during the sentencing phase, we
    
    GRANT Drinkard's COA. We also hold that the special instruction on
    
    temporary insanity caused by intoxication given under § 8.04 of the
    
    Texas Penal Code did not violate Drinkard's Eighth Amendment rights
    
    by placing mitigating evidence of non-insane intoxication beyond
    
    the effective reach of the jury.   We therefore AFFIRM the district
    
    court's denial of habeas relief.   In the alternative, we hold that
    
    the new federal standards of review contained in 28 U.S.C. §
    
    2254(d)(1), as amended by § 104(3) of the AEDPA, do not have a
    
    retroactive effect and thus are applicable to habeas cases pending
    
    at the time the President signed the AEDPA into law.      Applying
    
        25
          Drinkard argues summarily in his supplemental brief that the
    Supreme Court's decision in Egelhoff does not foreclose his
    "distinct Eighth Amendment challenge to the operation of section
    8.04(a) during the guilt-innocence phase of [his] trial."        A
    careful review of his briefing to this court reveals no "distinct
    Eighth Amendment challenge." He relies principally on Sandstrom v.
    Montana, 
    442 U.S. 510
    , 
    99 S. Ct. 2450
    , 
    61 L. Ed. 2d 39
     (1979), and In
    re Winship, 
    397 U.S. 358
    , 
    90 S. Ct. 1068
    , 
    25 L. Ed. 2d 368
     (1970),
    both of which rested on the Due Process Clause of the Fourteenth
    Amendment, not the Eighth Amendment.
    
    
    
    
                                   -41-
    those new standards of review to Drinkard's appeal, we conclude
    
    that § 2254(d)(1) bars relief because the state court's   decision
    
    on Drinkard's claim was neither "contrary to, [n]or . . . an
    
    unreasonable application of, clearly established Federal law, as
    
    determined by the Supreme Court."   We therefore VACATE our earlier
    
    stay of execution.
    
    
    
                    COA GRANTED, Judgment AFFIRMED, and Stay VACATED.
    
    
    
    
                                  -42-
    EMILIO M. GARZA, Circuit Judge, dissenting:
    
         At the guilt-innocence phase of Drinkard's capital murder
    
    trial, Drinkard presented evidence that he was intoxicated at the
    
    time of the murders.      Pursuant to § 8.04(a) of the Texas Penal
    
    Code, the trial court instructed the jury as follows:        "Voluntary
    
    intoxication does not constitute a defense to the commission of a
    
    crime."    The jury returned a guilty verdict.       At the punishment
    
    phase of Drinkard's trial, Drinkard once again presented evidence
    
    that he was intoxicated at the time of the murders.         Pursuant to
    
    § 8.04(b) of the Texas Penal Code, the trial court instructed the
    
    jury as follows:     "[I]f you find that the defendant at the time of
    
    the commission of the offense for which he is on trial was
    
    temporarily insane as a result of intoxication, then you may take
    
    such condition into consideration in mitigation of penalty attached
    
    for the offense for which the defendant is being tried."             The
    
    jurors    returned   affirmative   answers   to   both   special   issues
    
    submitted to them, and the trial court imposed a sentence of death.
    
    Today, the majority holds that there is no reasonable likelihood
    
    that Drinkard's jury interpreted the § 8.04(b) instruction given at
    
    the punishment phase of his trial to foreclose consideration of
    
    evidence of intoxication not rising to the level of temporary
    
    insanity. I respectfully disagree with the majority’s analysis and
    
    conclusions; accordingly, I dissent.
    
         The majority opinion makes three distinct holdings in support
    
    of its conclusion that the § 8.04(b) instruction did not violate
    
    the Eighth Amendment.      First, the majority holds that the plain
    language    of    the    §    8.04(b)     instruction   concerns    evidence   of
    
    temporary    insanity         caused    by    intoxication,   not   evidence    of
    
    intoxication in general.             Second, the majority holds that even if
    
    the jury could have interpreted the § 8.04(b) instruction, standing
    
    alone, to foreclose consideration of lower-level intoxication, the
    
    jury could not have done so in light of the trial court's general
    
    instruction to consider all the evidence.                 Third, the majority
    
    holds that even if the jury interpreted the § 8.04(b) instruction
    
    to foreclose consideration of lower-level intoxication with regard
    
    to the first special issue, concerning deliberateness, the jury
    
    could not have done so with regard to the second special issue,
    
    concerning future dangerousness.                 I will address each of these
    
    arguments in turn.
    
         At the outset, however, I emphasize the legal standard that
    
    the Supreme Court has established for such cases:                   A challenged
    
    jury instruction is unconstitutional if "there is a reasonable
    
    likelihood that the jury has applied the challenged instruction in
    
    a way that prevents the consideration of constitutionally relevant
    
    evidence."       Boyde v. California, 
    494 U.S. 370
    , 380, 
    110 S. Ct. 1190
    , 1198, 
    108 L. Ed. 2d 316
     (1990).                   In order to meet this
    
    standard, "a defendant need not establish that the jury was more
    
    likely than      not     to   have     been   impermissibly   inhibited   by   the
    
    instruction."      Id.
    
    
    
    
                                              -44-
         The majority opinion correctly cites Boyde's language, but
    
    then fails to follow its holding.         According to Boyde, there is no
    
    constitutionally     "correct"    interpretation       of   a      challenged
    
    instruction.       Nor   is   there   a    constitutionally       "erroneous"
    
    interpretation of a challenged instruction.           In accordance with
    
    Boyde, the only relevant inquiry is whether there is a reasonable
    
    likelihood that the jury interpreted the challenged instruction in
    
    a constitutionally impermissible way.          If so, the instruction is
    
    unconstitutional, regardless of whether other, constitutionally
    
    permissible interpretations are possible, or even more likely.             In
    
    the context of the Supreme Court’s holdings in Lockett v. Ohio, 
    438 U.S. 586
    , 
    98 S. Ct. 2954
    , 
    57 L. Ed. 2d 973
     (1978), and Eddings v.
    
    Oklahoma, 
    455 U.S. 104
    , 
    102 S. Ct. 869
    , 
    71 L. Ed. 2d 1
     (1982), our
    
    inquiry must be whether there is a reasonable likelihood that the
    
    jury has applied the challenged instruction in a way that prevents
    
    the consideration of any relevant mitigating evidence, including
    
    evidence of intoxication falling short of temporary insanity.              If
    
    we find such reasonable likelihood resulting from the court’s
    
    instruction, we must grant habeas relief.
    
                                          I
    
         The majority first holds that the plain language of the
    
    §   8.04(b)    instruction,   standing      alone,   does   not    foreclose
    
    consideration of lower-level intoxication.           The challenged jury
    
    instruction reads as follows:
    
    
    
    
                                      -45-
         Evidence of temporary insanity caused by intoxication may
         be introduced by the defendant in mitigation of the
         penalty attached to the offense for which he is being
         tried.   Intoxication means disturbance of mental or
         physical capacity resulting from the introduction of any
         substance into the body. Temporary insanity caused by
         intoxication means that the defendant’s mental capacity
         was so disturbed from the introduction of the substance
         into the body that the defendant did not know that his
         conduct was wrong.     Therefore, if you find that the
         defendant at the time of the commission of the offense
         for which he is on trial was temporarily insane as a
         result of intoxication, then you may take such condition
         into consideration in mitigation of penalty attached for
         the offense for which the defendant is being tried.
    
    (emphasis    added).       The    majority       contends   that      there   is    no
    
    reasonable likelihood that the jury read this instruction to bar
    
    its consideration of lower-level intoxication as a mitigating
    
    factor.      However,     the    prosecution        urged   such   an    exclusive
    
    interpretation at trial, and both Texas courts and this Circuit
    
    have read the instruction to be just such a bar.
    
         Specifically, the majority holds that there is no reasonable
    
    likelihood that the jury in Drinkard's case interpreted the words
    
    "such condition" in the phrase "you may take such condition into
    
    consideration"     to   refer    to   "intoxication."          Maj.    op.    at    14.
    
    Instead,    the   majority      claims    that    Drinkard's    jury     must      have
    
    interpreted "such condition" to refer to "temporary insanity caused
    
    by intoxication."       Maj. op. at 14.         As an initial matter, I find it
    
    hard to believe that Drinkard's jury must have interpreted the
    
    referent in question to refer to a phrase that is not even present
    
    
    
    
                                             -46-
    in the sentence of the instruction at issue.26                   Even putting
    
    grammatical semantics aside, I find it entirely unclear whether the
    
    term "such condition" in the instruction refers to "temporarily
    
    insane," to "intoxication," or to the entire phrase "temporarily
    
    insane as a result of intoxication."
    
          The   majority's    analysis     stands    at   odds   both   with    plain
    
    language interpretations of the statute from which the instruction
    
    was derived and with plain language interpretations of nearly
    
    identical instructions given in other cases.             The focus of § 8.04
    
    of the Texas Penal Code is on voluntary intoxication in general.
    
    Accordingly,     the   Texas   Court    of    Criminal   Appeals    has    stated
    
    explicitly that the statutory language of § 8.04(b) restricts the
    
    circumstances     under    which    evidence     of   intoxication        may   be
    
    considered mitigating evidence.          See Cordova v. State, 
    733 S.W.2d 175
    , 189 (Tex.Cr.App. 1987), cert. denied, 
    487 U.S. 1240
     (1988)
    
    ("In Texas, voluntary intoxication is no defense to the commission
    
    
           26
                 The relevant sentence in the instruction reads, "Therefore, if you
    find that the defendant . . . was temporarily insane as a result of intoxication,
    then you may take such condition into consideration . . . ." The grammatical
    definition of an antecedent is "a word, phrase, or clause, usually a substantive,
    that is replaced by a pronoun usually at a later point." RANDOM HOUSE COLLEGE
    DICTIONARY 56 (1980) (emphasis added). The word "insane" in the above-quoted
    sentence does not serve as a substantive (i.e., noun), but rather as an
    adjective. Consequently, the term "temporarily insane as a result of
    intoxication" is not a substantive phrase, but an adjectival phrase. If we
    analyze the sentence in the strictest grammatical sense, the only substantive
    "condition" in the instruction to which "such condition" could properly refer is
    the noun "intoxication." The majority avoids this obstacle, for purposes of its
    grammatical analysis, by substituting the phrase "temporary insanity caused by
    intoxication," the term that is used in the first sentence of the instruction,
    for the phrase "temporarily insane as a result of intoxication," the term that
    is used in the sentence relevant to the referent "such condition."
    
    
    
    
                                           -47-
    of a criminal wrong.       However, such may become mitigating evidence
    
    to the penalty attached to the offense for which the defendant is
    
    being   tried   if   the   intoxication    caused   temporary   insanity.")
    
    (internal citations omitted).
    
         It is therefore not surprising that every published opinion
    
    interpreting the plain language of an instruction given pursuant to
    
    § 8.04(b), with the exception of that propounded by the majority
    
    today, has concluded that the instruction forecloses the jury's
    
    consideration of evidence of intoxication unless such intoxication
    
    renders the defendant temporarily insane:
    
              While our penal code specifically precludes
         voluntary intoxication as a defense to the commission of
         crime, mitigation of punishment is possible, but only
         where the level of intoxication produces temporary
         insanity in the defendant. . . .
              . . .
              Although   appellant    was   not   prevented   from
         introducing mitigating evidence, the above instruction
         required the jury to find her intoxication at the time of
         the killings rendered her temporarily insane before they
         could consider her drug use in mitigation of her
         punishment. The charge on its face instructed the jury
         to consider the mitigating evidence only in this light,
         thereby implying that it may not have been considered for
         any other purpose.
    
    Tucker v. State, 
    771 S.W.2d 523
    , 533-34 (Tex.Cr.App. 1988), cert.
    
    denied, 
    492 U.S. 912
     (1989).
    
         [T]his instruction does not even purport to empower the
         jury to give mitigating effect to evidence of voluntary
         intoxication that does not rise to the level of temporary
         insanity. A juror who believed a capital accused was not
         so intoxicated as to be incapable of appreciating the
         wrongfulness of his action might nevertheless find him
         less morally culpable than would have been a sober man
    
    
    
    
                                        -48-
          committing the same crime. Here the juror would have no
          way to effectuate this belief either.
    
    Ex Parte Rodgers, 
    819 S.W.2d 533
    , 537 (Tex.Cr.App. 1991) (Clinton,
    
    J., dissenting, joined by Baird and Maloney, JJ.).27
    
          We do not reach the merits of the argument that the
          instruction denied Rogers his constitutionally secured
          right to have the jury consider all of his relevant
          mitigating evidence. . . .      The jury was allowed to
          consider evidence of voluntary intoxication as mitigating
          if it was persuaded that Rogers was so intoxicated that
          he did not know that what he was doing was wrong. . . .
          Here, the jury was allowed to give effect to intoxication
          evidence but only at the defined level.               The
          instruction's fit with Johnson and Eddings v. Oklahoma,
          
    455 U.S. 104
    , 
    102 S. Ct. 869
    , 
    71 L. Ed. 2d 1
     (1982), is
          uncertain, and we suggest no answer to that question
          today.
    
    Rogers v. Scott, 
    70 F.3d 340
    , 343-44 (5th Cir. 1995), cert. denied,
    
    ___ U.S. ___, 
    116 S. Ct. 1881
     (1996) (emphasis added).28
    
               My dissent is not based on the operation of the
          statutory special issues in isolation in Nethery's case;
          instead, it is based on another instruction that the
          trial court submitted along with the special issues that,
          in effect, took all three of the special issues out of
          operation with respect to Nethery's evidence of
          intoxication. . . .
               A reasonable juror could read that instruction as
          providing that Nethery's evidence of intoxication could
          not be considered at all))including under the special
    
    
    
         27
                The majority in Ex Parte Rodgers did not undertake an interpretation
    of the § 8.04(b) instruction.     Unlike Drinkard, the petitioner in Ex Parte
    Rodgers did not object to the trial court's jury charge, and the per curiam
    opinion disposed of all of the petitioner's claims by finding "that the findings
    and conclusions entered by the trial court are supported by the record and upon
    such basis the relief sought is denied." Ex Parte Rodgers, 819 S.W.2d at 534.
          28
                Unlike Drinkard, the petitioner in Rogers did not object to the
    § 8.04(b) instruction given at the punishment phase of his trial. We thus held
    his Eighth Amendment claim procedurally barred. 70 F.3d at 343-44.
    
    
    
    
                                         -49-
          issues))unless Nethery was so intoxicated that he was
          rendered temporarily insane. . . .
               . . . Because Nethery's jury was entirely precluded
          from considering the evidence of his non-insane state of
          intoxication, I believe that the § 8.04 instruction given
          by the trial judge in Nethery's case was a straight-
          forward violation of this well-established Eighth
          Amendment principle.
    
    Nethery v. Collins, 
    993 F.2d 1154
    , 1163-65 (5th Cir. 1993), cert.
    
    denied,    ___     U.S.   ___,   114    S.     Ct.   1416   (1994)    (King,    J.,
    
    dissenting).29
    
          Perhaps most troubling about the majority's reading of the
    
    § 8.04(b) instruction in Drinkard's case is the fact that the
    
    State's    brief     concedes    that    instructions       given    pursuant    to
    
    §   8.04(b)      foreclose   jurors'         consideration    of     evidence   of
    
    intoxication not rising to the level of temporary insanity:
    
               Texas law permissibly limits the circumstances under
          which voluntary intoxication can be given mitigating
          effect to those instances in which it renders the
          defendant unable to determine right from wrong or
          incapable of conforming his conduct to the law. . . .
               By requiring that voluntary intoxication result in
          temporary insanity, as defined by state law, Texas
          properly restricts the jury's consideration of mitigating
          evidence to those circumstances in which the intoxication
          actually results in a reduced culpability.
    
    Respondent-Appellee's Opposition to Application for Certificate of
    
    Probable Cause, at 24-25 (emphasis added).30
    
         29
                The majority in Nethery expressly declined to address the merits of
    the constitutionality of the § 8.04(b) instruction, holding the claim
    procedurally barred. Nethery, 993 F.2d at 1161 n.26.
          30
                Instead of arguing that the instruction does not foreclose
    consideration of evidence of intoxication not rising to the level of temporary
    insanity, the State's brief argues that such evidence is not constitutionally
    
    
    
    
                                            -50-
           In addition to the assertions of the State in its briefs and
    
    at trial, and in addition to the weight of precedent, common sense
    
    also dictates that the § 8.04(b) instruction in Drinkard's case
    
    "clearly directed the sentencer to disregard evidence." Boyde, 494
    
    U.S.    at   384,     110     S.    Ct.   at    1200.       Although    the    §   8.04(b)
    
    instruction in Drinkard's case did not explicitly prohibit jurors
    
    from considering evidence of lower-level intoxication, the Supreme
    
    Court has held that an instruction telling a jury what it “may”
    
    consider     necessarily           implies     that    it   may   not   consider     other
    
    factors.       This truism is embodied in the ancient legal maxim
    
    expressio unius est exclusio alterius, the expression of one thing
    
    is to the exclusion of another.
    
           The Supreme Court in Hitchcock v. Dugger endorsed exactly that
    
    inferential step, finding that "it could not be clearer" that, by
    
    instructing advisory jurors that they could consider evidence of
    
    certain statutory factors, a trial judge instructed them that they
    
    could    not       consider    evidence        of     other,    nonstatutory       factors.
    
    Hitchcock, 
    481 U.S. 393
    , 398-99, 
    107 S. Ct. 1821
    , 1824-25, L. Ed.
    
    2d 347 (1987), vacated on other grounds, ___ U.S. ___, 
    112 S. Ct. 3020
     (1992). The rationale of Hitchcock supports an interpretation
    
    of     the     §     8.04(b)       instruction         in      Drinkard's     case))which
    
    affirmatively stated which evidence of intoxication jurors “may”
    
    
    relevant. As the majority acknowledges, evidence of intoxication at the time of
    the murders is clearly constitutionally relevant. Maj. op. at 11 n.10.
    
    
    
    
                                                   -51-
    consider))as "clearly directing" jurors not to consider evidence of
    
    intoxication not resulting in insanity.
    
         In    light   of     the    overwhelming         number   of   §    8.04(b)
    
    interpretations))from the parties, from members of this Court, and
    
    from Texas state courts))to reach conclusions opposite that of the
    
    majority, I do not accept the majority's unsupported conclusions
    
    regarding the plain language of the § 8.04(b) instruction in
    
    Drinkard's case.
    
                                             II
    
         The   majority     next    holds    that   the   trial    court's   general
    
    instruction directing the jury to "consider all the evidence"
    
    remedied any infirmity in the more specific § 8.04(b) instruction.
    
    However, the Supreme Court has held that such a contradictory,
    
    permissible instruction in a jury charge will not cure an otherwise
    
    constitutionally impermissible instruction:
    
         Nothing in these specific sentences or in the charge as
         a whole makes clear to the jury that one of these
         contradictory instructions carries more weight than the
         other. Language that merely contradicts and does not
         explain a constitutionally infirm instruction will not
         suffice to absolve the infirmity. A reviewing court has
         no way of knowing which of the two irreconcilable
         instructions the jurors applied in reaching their
         verdict.
    
    Francis v. Franklin, 
    471 U.S. 307
    , 322, 
    105 S. Ct. 1965
    , 1975, 
    85 L. Ed. 2d 344
     (1985).            The majority sidesteps this issue by
    
    suggesting that the two instructions are not at odds))that there is
    
    no reasonable likelihood that Drinkard's jury interpreted the trial
    
    
    
    
                                            -52-
    court's general instruction and the § 8.04(b) instruction to
    
    contradict each other.     In light of both common sense and relevant
    
    case law, I find such an analysis untenable.
    
         There is more than one way that Drinkard's jury could have
    
    interpreted the general instruction and the § 8.04(b) instruction
    
    to "contradict" each other.             The jury could have, of course,
    
    interpreted the general instruction to mean "Do consider evidence
    
    of lower-level intoxication," while interpreting the § 8.04(b)
    
    instruction to mean "Do not consider evidence of lower-level
    
    intoxication."     The    jury   could        have   interpreted   the   general
    
    instruction as constituting the general rule and interpreted the
    
    § 8.04(b) instruction to carve out a specific exception.                 Further,
    
    the jury could have squared the two instructions through textual
    
    analysis.     The general instruction directs jurors that they may
    
    consider all of the evidence "in determining each of these Special
    
    Issues."    Consistent with this instruction, the jury could have
    
    considered all of Drinkard's evidence of intoxication, but only for
    
    the purpose of determining whether such evidence rose to the level
    
    of temporary insanity.     Thus, the jury could have considered such
    
    evidence in the process of determining the answers to the special
    
    issues, but still could have considered themselves foreclosed from
    
    considering evidence of lower-level intoxication in mitigation of
    
    punishment,    pursuant    to    the    §     8.04(b)    instruction.       This
    
    
    
    
                                           -53-
    interpretation renders the instructions facially complementary,
    
    though clearly unconstitutional.
    
          I do not proffer any of these interpretations as the "correct"
    
    interpretation of the jury charge in Drinkard's case, nor do I
    
    claim that any one interpretation is the most likely.          Such claims
    
    are   not    what   the   law   requires.    I   present   these   possible
    
    interpretations in order to illustrate the uncertainty surrounding
    
    the relationship between these two instructions.
    
          Simply put, no language in either the general instruction or
    
    the § 8.04(b) special instruction given in Drinkard's case provides
    
    any indication of how the two instructions should relate to each
    
    other.      This sense of uncertainty was explicitly recognized by
    
    another panel of our Court when describing an essentially identical
    
    jury charge:
    
          The trial judge did not explicitly instruct the jury
          whether it could consider the evidence of intoxication in
          answering the two questions. It did instruct that the
          jury could consider all evidence submitted during both
          the guilt and punishment phases of the trial, and,
          significantly, counsel argued the weight the jury ought
          to accord to the intoxication evidence. Nonetheless, we
          cannot say with confidence how the jury put the
          instruction and the questions together.           We are
          describing the uncertainty because it is the context in
          which the procedural bar was invoked.
    
    Rogers, 70 F.3d at 344.         We simply do not know how Drinkard's jury
    
    put these instructions together.         In the face of such uncertainty,
    
    I do not accept the majority opinion's unsupported assertion that
    
    "[t]his general instruction necessarily and undeniably directed the
    
    
    
    
                                          -54-
    jury to consider Drinkard's evidence of intoxication in answering
    
    the special issues."       Maj. op. at 16.31
    
                                          III
    
          Third, the majority holds that the § 8.04(b) instruction by
    
    its own terms applied to only the first special issue, concerning
    
    whether the murder was committed deliberately.                Therefore, the
    
    argument continues, the instruction could not have foreclosed
    
    jurors' consideration of Drinkard's evidence of intoxication with
    
    regard to the second special issue, involving future dangerousness.
    
    This portion of the majority's analysis is flawed in several
    
    respects.
    
          The majority's analysis is exactly the type of "technical
    
    hairsplitting" that the Supreme Court has repeatedly warned us not
    
    to   perform   when   analyzing     challenged    instructions     under    the
    
    "reasonable likelihood" standard:
    
          In evaluating the instructions, we do not engage in a
          technical parsing of this language of the instructions,
          but instead approach the instructions in the same way
          that the jury would))with a "commonsense understanding of
          the instructions in the light of all that has taken place
          at trial."
    
    
    
    
         31
                More importantly, the Supreme Court disagrees. As I have previously
    noted, Hitchcock v. Dugger supplies the inferential step that the majority
    ignores))”it could not be clearer” that, by instructing advisory jurors that they
    could consider evidence of certain statutory factors, a trial judge instructed
    them that they could not consider evidence of other, nonstatutory factors. See,
    supra at 9 (citing Hitchcock, 481 U.S. at 398-99, 107 S. Ct. 1824-25).
    
    
    
    
                                         -55-
    Johnson v. Texas, 
    509 U.S. 350
    , 368, 
    113 S. Ct. 2658
    , 2669, 125 L.
    
    Ed. 2d 290 (1993) (quoting Boyde, 494 U.S. at 381, 110 S. Ct. at
    
    1198).
    
         Jurors do not sit in solitary isolation booths parsing
         instructions for subtle shades of meaning in the same way
         that lawyers might.        Differences among them in
         interpretation of instructions may be thrashed out in the
         deliberative process, with commonsense understanding of
         the instructions in the light of all that has taken place
         at the trial likely to prevail over technical
         hairsplitting.
    
    Boyde, 494 U.S. at 380-81, 110 S. Ct. at 1198.          The majority quotes
    
    the language "at the time of the commission of the offense" in one
    
    clause of the § 8.04(b) instruction, uses that language to impose
    
    a   temporal   restriction    on   the    whole   instruction,       draws   a
    
    distinction between the "backward-looking" first special issue and
    
    the "forward-looking" second special issue, and concludes that the
    
    jurors must have fenced off the second special issue as a safe
    
    haven, a sort of limitation-free zone, for the consideration of
    
    evidence of voluntary intoxication.        This portion of the majority
    
    opinion   provides   a   perfect   illustration    of    a   court   "parsing
    
    instructions for subtle shades of meaning in the same way that
    
    lawyers might."
    
         Even parsing the instructions, I still do not reach the
    
    majority's conclusions.      Breaking down the language and grammar of
    
    the § 8.04(b) instruction given in Drinkard's case provides no
    
    support for the majority's conclusion that the instruction affects
    
    
    
    
                                       -56-
    only   the   first   special   issue.     The   relevant   portion   of   the
    
    instruction is a conditional sentence, following an "if/then"
    
    structure:
    
           [I]f you find that the defendant at the time of the
           commission of the offense for which he is on trial was
           temporarily insane as a result of intoxication, then you
           may take such condition into consideration in mitigation
           of penalty attached for the offense for which the
           defendant is being tried.
    
    The word "if" signals the condition of the sentence, the word
    
    "then" signals the contingency. Both parts of the instruction have
    
    temporal components.      The condition ("If you find . . .") is a
    
    future condition; it will be realized, if at all, in the jury room.
    
    However, this future condition is restricted in time, because the
    
    direct object of the future verb "find" is a dependent clause with
    
    a past tense verb ("was [temporarily insane]").              Likewise, the
    
    contingency ("then you may . . .") is a future contingency; it will
    
    occur, if at all, in the jury room.         However, the contingency of
    
    the instruction contains no language that restricts its scope to
    
    "at the time of the commission of the offense," or any other past
    
    framework.    Restating the instruction using symbols, the jury was
    
    thus instructed "If you find (in the future) that x occurred (in
    
    the past), then you may do y (in the future)."         Any restriction on
    
    the application of the instruction would have to appear in the
    
    contingency ("then you may . . ."), which directs the jury how to
    
    apply certain evidence, not in the condition ("If you find . . ."),
    
    
    
    
                                       -57-
    which only identifies the circumstances under which the contingency
    
    will be realized.
    
         When reduced to its basic elements, the majority's analysis
    
    states that language in the "If you find . . ." part of the
    
    instruction imposes a temporal restriction on the "then you may
    
    . . ." contingency.     Such a thesis is contrary to common sense and
    
    unsupported in the language of the instruction.           I do not find the
    
    words "only with regard to the first special issue" implicit in the
    
    language   "you   may   take   such    condition   into   consideration   in
    
    mitigation of penalty attached for the offense for which the
    
    defendant is on trial."
    
         The majority's position is also directly contrary to the
    
    arguments of the State's attorneys.          For if the jury's findings as
    
    to "backward-looking" events were relevant only to the "backward-
    
    looking" special issue, jurors could not use past events to predict
    
    future behavior.    As Mr. Millin argued for the State:
    
         The second issue involves whether or not you find that
         there's a probability that Mr. Drinkard will commit
         future acts of violence, criminal acts of violence, such
         that they would be or he would be a continuing threat to
         society. In this regard, as I'm sure you discussed on
         the voir dire process, that basically the best way))the
         only way that a person can predict another's future
         conduct is based on his past conduct. We have to prove
         beyond a reasonable doubt that there's such a probability
         that this person will act in the future as he's acted in
         the past because we would never be able to prove to a 100
         percent certainty.
    
    
    
    
                                          -58-
    Trial transcript, vol. 36, at 25-26.         Therefore, both in terms of
    
    grammar, technically parsed in the most legalistic sense, and in
    
    terms of common sense, no language in the challenged instruction
    
    directs jurors to cabin the effect of the instruction within the
    
    first special issue.
    
         The majority is quite right to point out that challenged
    
    instructions should be analyzed in the context in which they are
    
    made.   Cupp v. Naughten, 
    414 U.S. 141
    , 146-47, 
    94 S. Ct. 396
    , 400,
    
    
    38 L. Ed. 2d 368
     (1973).     The majority is also correct to consider
    
    the arguments of Drinkard's attorneys as part of that context.
    
    Boyde, 494 U.S. at 384-85, 110 S. Ct. at 1200.            Both of Drinkard's
    
    attorneys   did   argue,   quite   forcefully,     that    the   jury   should
    
    consider the fact that Drinkard was intoxicated at the time of the
    
    murders when deciding both of the special issues.                However, the
    
    majority's analysis in this regard is remiss in two respects.
    
         First, while the arguments of counsel are relevant a jury's
    
    interpretation     of   challenged    jury   instructions,       the    court's
    
    instructions themselves carry substantially more weight.                Boyde,
    
    494 U.S. at 384-85, 110 S. Ct. at 1200.           Therefore, an attorney's
    
    arguments to the jury are simply insufficient to cure an otherwise
    
    unconstitutional    instruction      given   by   the   court.     Taylor   v.
    
    Kentucky, 
    436 U.S. 478
    , 488-89, 
    98 S. Ct. 1930
    , 1936, 
    56 L. Ed. 2d 468
     (1978).
    
    
    
    
                                         -59-
           Second, if the majority opinion is to rely on a contextual
    
    analysis, it must look at the challenged instruction in the context
    
    of "all that has taken place at trial," Boyde, 494 U.S. at 381, 110
    
    S. Ct. at 1198, not just those parts of the proceedings that
    
    support the majority's conclusions.                A review of the trial court
    
    record reveals that Drinkard's intoxication evidence was a central
    
    issue.        At    the   guilt-innocence    phase    of    the    trial,    Drinkard
    
    presented evidence that he was intoxicated at the time of the
    
    murders.      However, at the close of the guilt-innocence phase, the
    
    trial       court    specially       instructed    the     jury    that     voluntary
    
    intoxication does not constitute a defense to the commission of a
    
    crime under Texas law.           The message of the § 8.04(a) instruction
    
    was clear:         Intoxication evidence is simply not relevant.
    
           At    the    penalty   phase    of   the   trial,    Drinkard      once     again
    
    presented evidence that he was intoxicated at the time of the
    
    murders.      At the close of evidence the State waived its right to
    
    open closing arguments.          Drinkard's attorneys then argued that the
    
    jury     could      answer    both    special     issues    "no"    based     on    the
    
    intoxication evidence.           They argued, with regard to special issue
    
    number one, that Drinkard did not act deliberately because at the
    
    time of the murders he had been intoxicated to the point of
    
    temporary insanity; he did not know right from wrong.                       Then they
    
    argued, with regard to special issue number two, that Drinkard
    
    would not be dangerous in the future because he was dangerous only
    
    
    
    
                                             -60-
    when he was drunk, and he would not be able to drink while
    
    incarcerated.    As support for this argument, Drinkard's attorneys
    
    pointed to evidence concerning his intoxication during violent
    
    episodes in his past, including the murders for which Drinkard was
    
    on   trial.     As   the   majority    opinion   details,   however,   these
    
    arguments with regard to the second special issue did not focus on
    
    intoxication to the point of temporary insanity, but instead
    
    focused on intoxication generally, necessarily including evidence
    
    of lower-level intoxication.
    
          In the State's closing argument, Mr. Millin made two direct
    
    references to the trial court's § 8.04(b) instruction.             Neither
    
    reference limits itself to the first special issue. Indeed, in the
    
    portion of Mr. Millin's argument quoted by the majority in a
    
    footnote, the State suggests explicitly that temporary insanity is
    
    a prerequisite to the consideration of intoxication evidence under
    
    both special issues:
    
          The Defense talks to you about this issue of temporary
          insanity due to intoxication, and I suppose that comes in
          mostly))they connected up somehow with both special
          issues, but to consider that at all))and I suggest after
          you look at the evidence you won't consider that at all.
          To consider that at all you have to decide, one, that at
          the time of the deaths Mr. Drinkard was intoxicated.
          . . . and, two, that by reason of this voluntary
          intoxication he didn't basically know right from wrong,
          he didn't know what he was doing when he killed these
          three people was wrong.
    
    Trial transcript, vol. 36, at 22-23 (emphasis added); see also
    
    Trial transcript, vol. 36, at 25 ("He wasn't intoxicated to such an
    
    
    
    
                                          -61-
    extent he didn't know right from wrong.            That's what you have to
    
    find to give him any kind of break on the intoxication.") (emphasis
    
    added).    That is the context in which Drinkard's jury heard the
    
    trial court's jury charge. That is the context in which Drinkard's
    
    jury heard a general instruction to "consider all the evidence
    
    submitted to you," and a special instruction, which concluded:
    
         [I]f you find that the defendant at the time of the
         commission of the offense for which he is on trial was
         temporarily insane as a result of intoxication, then you
         may take such condition into consideration in mitigation
         of penalty attached for the offense for which the
         defendant is being tried.
    
    In my opinion, the message of the § 8.04(b) instruction))especially
    
    in light of the § 8.04(a) instruction given earlier))is clear:
    
    Intoxication     evidence    is    relevant      only    under    the   defined
    
    circumstances.
    
         The    majority   today      holds   that   there    is     no   reasonable
    
    likelihood that Drinkard's jury felt precluded by the instructions
    
    of the court from considering Drinkard's proffered evidence of
    
    intoxication not rising to the level of temporary insanity.                In so
    
    doing,    the   majority    concludes     that   there    is     no   reasonable
    
    likelihood that Drinkard's jury interpreted the § 8.04(b) special
    
    instruction as the State's attorneys interpret it, as Texas courts
    
    have interpreted it, and as several members of our Court have
    
    previously interpreted it.         In the full context of this trial, I
    
    find that such misinterpretation was reasonably likely.
    
    
    
    
                                         -62-
                                    IV
    
         Finally, because the majority would decide this case on the
    
    alternative ground that the recently passed Antiterrorism and
    
    Effective Death Penalty Act (“AEDPA”) would deny habeas relief, I
    
    briefly address this issue as well.   During the pendency of this
    
    appeal, the President signed into law the AEDPA, which (among other
    
    things) amends federal habeas corpus law. This new law narrows the
    
    circumstances under which federal courts may grant writs of habeas
    
    corpus on behalf of people held under judgment of state courts.
    
    The state court’s temporary insanity instruction and subsequent
    
    decision so clearly denied Drinkard the constitutional guarantees
    
    of Lockett and Eddings, however, that habeas relief is justified
    
    even under the AEDPA.
    
         The relevant section of the habeas corpus statute, 28 U.S.C.
    
    § 2254(d)(1), as amended by AEDPA § 104(3)(d), states:
    
              (d) An application for a writ of habeas corpus on
         behalf of a person in custody pursuant to the judgment of
         a State court shall not be granted with respect to any
         claim that was adjudicated on the merits in State court
         proceedings unless the adjudication of the claim ))
                         (1) resulted in a decision that was
                   contrary to, or involved an unreasonable
                   application    of,   clearly  established
                   Federal law, as determined by the Supreme
                   Court of the United States . . . .
    
    Because Congress included neither an effective date for this
    
    amended provision nor a clear statement regarding its retroactive
    
    application to cases pending on appeal, it is not apparent whether
    
    
    
    
                                   -63-
    we should apply the AEDPA in this case.            As an initial matter, I
    
    agree with the majority’s careful analysis and conclusions that the
    
    statute is a procedural change in the standard of review, and that
    
    as such it should have retroactive effect under Landgraf v. USI
    
    Film Products, ___ U.S. ___, ___, 
    114 S. Ct. 1483
    , 1499-1505, 
    128 L. Ed. 2d 229
     (1994), and United States v. Mejia, 
    844 F.2d 209
    , 211
    
    (5th Cir. 1988).      I also agree with the majority’s determination
    
    that the state court decided Drinkard’s claims on the merits.              Maj.
    
    op. at 29-33, 36-37.        However, as to the majority’s substantive
    
    application of the AEDPA and its ultimate decision on the merits of
    
    Drinkard’s habeas petition, I respectfully disagree.
    
                                           A
    
           The majority reviews the state court’s determinations of law
    
    separately from mixed questions of law and fact.           It holds that, as
    
    a matter of law, the trial court’s correct identification of the
    
    applicable   constitutional        standard   guarantees   that    the    state
    
    court’s decision was not contrary to clearly established federal
    
    law.     Although   the    state   court    apparently   recognized      that   a
    
    sentencing judge may not bar a jury from considering any relevant
    
    evidence, § 2254(d)(1) directs us to consider a different issue.
    
    Under the    AEDPA,   we    must   consider    whether   the   state   court’s
    
    adjudication “resulted in a decision contrary . . . to clearly
    
    established Federal law . . . .”            (emphasis added).     It is plain
    
    that identification of the proper standard is not enough; the state
    
    
    
    
                                         -64-
    court’s   decision       must     accord     with   the      Supreme     Court’s
    
    interpretation of the Constitution.           For the reasons I have stated
    
    above, I think it is clear that the effect of the trial court’s
    
    § 8.04(b) instruction was to bar the jury’s consideration of
    
    mitigating evidence.      Thus the trial court’s decision was contrary
    
    to the Supreme Court’s interpretation of the Eighth Amendment in
    
    Lockett and Eddings.
    
                                            B
    
          The majority also holds that, as a mixed question of law and
    
    fact, the state court did not unreasonably apply federal law in
    
    determining that its limiting instruction did not violate the
    
    Eighth Amendment.       Specifically, the majority bases its reasoning
    
    on the principle that the AEDPA’s “‘unreasonable application’
    
    standard of review of a state court decision must mean more than
    
    that a federal court may grant habeas relief based on its simple
    
    disagreement with the state court decision; this would amount to
    
    nothing more than a de novo review.”            Maj. op. at 38.
    
          I think the majority has the standard of review exactly wrong.
    
    The   Supreme   Court    has    consistently    held    that   application    of
    
    constitutional    law     to    facts   in     habeas    cases   requires     an
    
    independent, de novo determination by federal courts.                  Wright v.
    
    West, 
    505 U.S. 277
    , 301-03, 
    112 S. Ct. 2482
    , 2495-96, 
    120 L. Ed. 2d 225
     (1992) (O’Connor, J., concurring) (the Supreme Court has
    
    consistently    applied    a    de   novo    standard   of   review    in   mixed
    
    
    
    
                                          -65-
    questions of constitutional law and fact in habeas corpus cases);
    
    see also Brown v. Allen, 
    344 U.S. 443
    , 507, 
    73 S. Ct. 397
    , 446, 
    97 L. Ed. 469
     (1953), overruled on other grounds by Townsend v. Sain,
    
    
    372 U.S. 293
    , 312 (1963) (“Thus, so-called mixed questions or the
    
    application of constitutional principles to the facts as found
    
    leave the duty of adjudication with the federal judge.”); Irvin v.
    
    Dowd, 
    366 U.S. 717
    , 723-28, 
    81 S. Ct. 1639
    , 1643-45, 
    6 L. Ed. 2d 751
     (1961) (reviewing de novo state court determinations of mixed
    
    questions of law and fact in federal habeas case); Brewer v.
    
    Williams, 
    430 U.S. 387
    , 403, 
    97 S. Ct. 1232
    , 1242, 
    51 L. Ed. 2d 424
    
    (1977) (same); Cuyler v. Sullivan, 
    446 U.S. 335
    , 342, 
    100 S. Ct. 1708
    , 1715, 
    64 L. Ed. 2d 333
     (1980) (same); Miller v. Fenton, 
    474 U.S. 104
    , 112, 
    106 S. Ct. 445
    , 450, 
    88 L. Ed. 2d 405
     (1985) (same).
    
    The Supreme Court has made clear that federal courts must undertake
    
    independent, de novo review of state court habeas decisions on
    
    appeal.     I am unwilling to depart from this unbroken line of
    
    Supreme    Court   precedent,     especially     since    the   language    of
    
    § 2254(d)(1), as amended, does not demand it.32
    
    
    
          32
                For this unprecedented deferential standard of review, the majority
    cites only the word “unreasonable” in § 2254(d)(1) and one piece of legislative
    history, indicating that the AEDPA “requires deference to the determinations of
    state courts that are neither ‘contrary to,’ nor an ‘unreasonable application
    of,’ clearly established federal law.” H.R. Conf. Rep. No. 518, 104th Cong., 2d
    Sess. 111 (1996), reprinted in 1996 U.S.C.C.A.N. 944, 944. This statement in the
    conference report does not change the standard of review, it merely restates the
    standard of the AEDPA, dictating that we should not upset state court decisions
    that do not offend federal constitutional law. I would not overturn established
    Supreme Court precedent with so thin a lever.
    
    
    
    
                                         -66-
             The majority continues by stating that an application of law
    
    to facts is unreasonable only where “reasonable jurists would be of
    
    one view that the state court ruling was incorrect.”           This cannot
    
    be the standard of review.         Where a federal court of appeals
    
    determines that a state criminal decision is contrary to federal
    
    law, § 2254(d)(1) does not require the unanimous consent of the
    
    federal bench for habeas relief.      Indeed, it does not even require
    
    unanimity among a panel of judges considering the case.                 The
    
    determination of reasonableness must consider only the propriety
    
    and correctness of the state court’s actions in the context of
    
    federal guarantees established by the Supreme Court.           If a federal
    
    court “disagrees” with the state court’s application of federal
    
    law))if it finds that the state court unreasonably applied the law
    
    of the land))that federal court must grant habeas relief under
    
    § 2254(d)(1).    It is well established that where state and federal
    
    courts    disagree   about   the     meaning   of    federal     law,   the
    
    interpretation of the federal courts must prevail. Brown, 344 U.S.
    
    at 507, 73 S. Ct. at 446.
    
          As I have catalogued in this dissent, I think it clear that
    
    the state court’s temporary insanity instruction denied Drinkard
    
    the   constitutional    guarantees    of   Lockett   and   Eddings.     The
    
    misapplication of the Eighth Amendment to the facts of this case
    
    justify relief under § 2254(d)(1), whether or not we apply the
    
    
    
    
                                       -67-
    AEDPA.    Thus   I   respectfully   disagree   with   the   majority’s
    
    conclusions, and, accordingly, I dissent.
    
    
    
    
                                    -68-
    -69-