Cole v. Dretke ( 2006 )


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  •                                                       United States Court of Appeals
                                                                   Fifth Circuit
                                                                F I L E D
                         REVISED MARCH 29, 2006
                                                                March 17, 2006
                  IN THE UNITED STATES COURT OF APPEALS
                          FOR THE FIFTH CIRCUIT             Charles R. Fulbruge III
                                                                    Clerk
    
    
                              No. 01-10646
    
    
    
    TED CALVIN COLE,
    now known as Jalil Abdul-Kabir,
    
                                       Petitioner-Appellant,
    
    versus
    
    DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
    CORRECTIONAL INSTITUTIONS DIVISION,
    
                                       Respondent-Appellee.
    
                          --------------------
              Appeal from the United States District Court
                   for the Northern District of Texas
    
                           --------------------
                    ON PETITION FOR REHEARING EN BANC
    
              (Opinion 5/19/04, 5th Cir., 99 Fed. Appx. 523)
    (Opinion on Remand from U.S. Supreme Court 7/22/05, 
    418 F.3d 494
    )
    
    Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
    
    PER CURIAM:
    
         Treating the Petition for Rehearing En Banc as a Petition for
    
    Panel Rehearing, the Petition for Panel Rehearing is DENIED.        The
    
    court having been polled at the request of one of the members of
    
    the court and a majority of the judges who are in regular active
    
    service and who are not disqualified not having voted in favor
    (FED. R. APP. P. and 5TH CIR. R. 35), the Petition for Rehearing En
    
    Banc is DENIED.
    
    
    
    
                                    2
    DENNIS, Circuit Judge, dissenting from denial of the motion for
    
    rehearing en banc.
    
           I respectfully dissent from the majority’s refusal to grant
    
    rehearing en banc. The Supreme Court remanded this case to the
    
    panel for reconsideration in the light of Tennard v. Dretke, 
    542 U.S. 274
       (2004),   which     determined   that   the   Fifth   Circuit’s
    
    “constitutional relevance rule,” which included the “nexus” and
    
    “uniquely severe” tests, had no basis in the Supreme Court’s
    
    decisions and suggested that those rules were, in fact, in conflict
    
    with       federal   law   clearly    established   by   the   Supreme   Court’s
    
    decisions in Penry v. Lynaugh, 
    492 U.S. 302
     (1989)(Penry I), Boyde
    
    v. California, 
    494 U.S. 370
     (1990), and McKoy v. North Carolina,
    
    
    494 U.S. 433
     (1990).
    
               The panel, after reconsidering this case in light of Tennard
    
    and Smith v. Texas,1 
    543 U.S. 37
     (2004), applied the clearly
    
    established federal relevance standard recognized in McKoy to
    
    determine that Cole’s organic neurological defect, lack of impulse
    
    control and destructive family background were relevant mitigating
    
    evidence, but incorrectly interpreted and applied the Supreme
    
    Court’s decisions in Johnson v. Texas, 
    509 U.S. 350
     (1993) and
    
    Graham v. Collins, 
    506 U.S. 461
     (1993) as holding that the clearly
    
    established federal capital sentencing principles (requiring a
    
    
           1
                Decided by the Supreme Court subsequent to its remand of
    Cole.
    
    
                                              3
    State to empower and allow its capital sentencer to fully consider
    
    a   defendant’s   relevant    mitigating   evidence   in    individualized
    
    assessment of his culpability and to give that evidence full effect
    
    in selecting his sentence) articulated in Penry I apply only to
    
    mitigation evidence, such as mental retardation, that has, for the
    
    defendant’s   case,    a     “double-edged”   harmful      (i.e.,   only   an
    
    aggravating, and no mitigating) effect upon the jury’s answer to
    
    whether the defendant will be a danger to society in the future.
    
    Then, without bothering to determine whether the pertinent state
    
    court’s decision was contrary to or an unreasonable application of
    
    clearly established federal law under AEDPA, the panel examined
    
    Cole’s mitigation evidence in detail, determined that none of it
    
    had a double-edged effect, and thus concluded that there had been
    
    no constitutional violation under Penry I.
    
          In doing so, I believe that the panel used another Fifth
    
    Circuit gloss upon a Supreme Court decision, i.e., the double edged
    
    evidence limitation of Penry I, that has no basis in the Supreme
    
    Court decisions, to avoid confronting the real issue, viz., whether
    
    the Texas special issue instruction prevented the sentencing jury
    
    from being able to fully consider and give full effect to Cole’s
    
    relevant mitigating evidence.       When that issue is addressed by
    
    applying the federal law clearly established by the Supreme Court’s
    
    decisions, shorn of unauthorized Fifth Circuit gloss, as required
    
    by AEDPA, I believe that we will be forced to conclude that the
    
    
    
                                        4
    decision by the state court on November 24, 1999 to deny Cole
    
    habeas relief was either contrary to or an unreasonable application
    
    of clearly established federal law as determined by the Supreme
    
    Court’s decisions. I cannot be absolutely certain of this result,
    
    because neither the panel nor I have yet examined that state court
    
    decision and its underpinnings.                On its face, however, the panel
    
    decision appears to be incorrect and the situation we are in
    
    clearly calls for an en banc reconsideration of this case.
    
         The majority’s decision to deny en banc reconsideration of the
    
    panel decision is extremely unfortunate. The panel’s decision
    
    erroneously denigrates the pertinent clearly established Supreme
    
    Court jurisprudence of Penry I, McKoy and Boyde specifically
    
    highlighted      in     Tennard      and       Smith    and        perpetuates    the
    
    misinterpretation of Johnson v. Texas and Graham v. Collins as our
    
    circuit precedent.        Our   other      panels,     as   well    as   the   federal
    
    district and state courts, are certain to follow the Cole panel
    
    once more into a breach that leads to almost certain Supreme Court
    
    reversals and remands. The resulting waste of judicial resources
    
    will be exacerbated this time, however, by our indifference in
    
    allowing   the    Cole     panel’s      false     signals     to     misdirect    the
    
    adjudication and review of many other state and federal Texas death
    
    penalty cases.        The responsible, efficient and just course in the
    
    present circumstances would have been, instead, for us to resolve
    
    promptly en banc the important issues raised by the Cole panel
    
    
    
                                               5
    decision and allow time for possible correction by the Supreme
    
    Court before permitting our numerous other death penalty panels to
    
    generate more decisions without either en banc or renewed Supreme
    
    Court guidance.
    
         The reasons that an en banc rehearing is urgently needed in
    
    this case are substantially similar to the reasons I assigned in
    
    concurring in the judgment only in Nelson v. Dretke – F.3d —, No.
    
    02-11096, 
    2006 WL 477143
     at *5 (5th Cir. 2006).        In that opinion,
    
    I concluded that the clearly established federal law under AEDPA on
    
    October 10, 2001, the date of the Texas Court of Criminal Appeals’
    
    denial of state habeas relief to Nelson on the merits, essentially
    
    required a state to (1) empower its capital sentencer       to (a) give
    
    full consideration and effect to all of the defendant’s relevant
    
    mitigating evidence; (b) make an individualized assessment of the
    
    level, degree, magnitude, and nature of the defendant’s moral
    
    culpability and deathworthiness; and (c) select the appropriate
    
    sentence of either life imprisonment or death for each convicted
    
    defendant based on that assessment in light of all of the relevant
    
    evidence in the case; and (2) refrain from interfering with the
    
    capital sentencer’s performance of this constitutionally protected
    
    function. In essence, I believe that these federal constitutional
    
    requirements imposed on a State by the Eighth and Fourteenth
    
    Amendments   were   clearly   established   by   the   Supreme   Court’s
    
    decisions prior to Penry I; that any doubt as to these requirements
    
    
    
                                       6
    was removed by the Court’s clear reaffirmation and reestablishment
    
    of them in Penry I itself; that any new doubt or question as to
    
    these requirements raised by any of the Court’s decisions after
    
    Penry I, such as Johnson and Graham, were dispelled by the Court’s
    
    decisions in McKoy, McCleskey v. Kemp, 
    481 U.S. 279
     (1987), Boyde,
    
    Buchanan v. Angelone, 
    522 U.S. 269
     (1998), and Payne v. Tennessee,
    
    
    501 U.S. 808
     (1991), prior to the Texas Court of Criminal Appeals’
    
    denial of state habeas relief on the merits to Cole on November 24,
    
    1999.
    
         In Furman v. Georgia, 
    408 U.S. 238
     (1972), Justice Stewart
    
    expressed what has come to be the longstanding view of the Supreme
    
    Court that:
    
          The penalty of death differs from    all other forms of
         criminal punishment, not in degree    but in kind. It is
         unique in its total irrevocability.   It is unique in its
         rejection of rehabilitation of the    convict as a basic
         purpose of criminal justice. And it   is unique, finally,
         in its absolute renunciation of all   that is embodied in
         our concept of humanity.
    
    Id. at 305 (Stewart, J. concurring). Thus, he concluded, “that the
    
    Eighth and Fourteenth Amendments cannot tolerate the infliction of
    
    a sentence of death under legal systems that permit this unique
    
    penalty to be so wantonly and so freakishly imposed.” Id.
    
         The natural outgrowth of that view led to the Court’s cases
    
    condemning mandatory imposition of the death penalty, Roberts v.
    
    Louisiana, 
    431 U.S. 633
     (1977) (per curiam); Woodson v. North
    
    Carolina, 
    428 U.S. 280
     (1976) (plurality opinion); recognizing that
    
    
    
                                     7
    arbitrary imposition of that penalty violates the Eighth Amendment,
    
    e.g., Zant v. Stephens, 
    462 U.S. 862
    , 874 (1983); Gregg v. Georgia,
    
    
    428 U.S. 153
    , 189 (1976); Furman, supra; mandating procedures that
    
    guarantee full consideration of mitigating evidence, e.g., Eddings
    
    v. Oklahoma, 
    455 U.S. 104
     (1982); Lockett v. Ohio, 
    438 U.S. 586
    
    (1978) (plurality opinion); and requiring that capital sentencers
    
    be empowered and allowed to select for the death penalty only the
    
    most blameworthy or deserving of offenders for that punishment
    
    through    individualized        culpability       assessments     and    sentence
    
    selections      based on the sentencer’s giving full consideration and
    
    full effect to all of the defendant’s relevant mitigating evidence.
    
    See California v. Brown, 
    479 U.S. 538
    , 545-546 (1987)(O’Connor, J.,
    
    concurring)(“Lockett and Eddings reflect the belief that punishment
    
    should be directly related to the personal culpability of the
    
    criminal defendant. Thus, the sentence imposed at the penalty stage
    
    should    reflect   a   reasoned    moral     response      to   the   defendant's
    
    background, character, and crime rather than mere sympathy or
    
    emotion....[T]he individualized assessment of the appropriateness
    
    of the death penalty is a moral inquiry into the culpability of the
    
    defendant[.]”) See also Hitchcock v. Dugger, 
    481 U.S. 393
     (1987);
    
    Sumner v. Shuman, 
    483 U.S. 66
     (1987); Franklin v. Lynaugh, 
    487 U.S. 164
    ,      184     (1988)(O’Connor,           J.,     with        Blackmun,     J.,
    
    concurring)(stating       that     the   “principle      underlying       Lockett,
    
    Eddings, and Hitchcock, is that punishment should be directly
    
    
    
                                             8
    related to the personal culpability of the criminal defendant.”);
    
    Id.     at    191-192    (Stevens,          J.,      with     two     other     Justices,
    
    dissenting)(agreeing          with    O’Connor        that     “the    jury    must    “not
    
    merely...be allowed to hear any such [mitigating] evidence the
    
    defendant     desires    to    introduce...[but              also]    allowed    to    give
    
    ‘independent mitigating weight’ to the evidence.”).
    
          In     the   parallel,       sometimes         overlapping,      development       of
    
    exemptions from eligibility for the death penalty, the Supreme
    
    Court has held that the principles underlying capital punishment
    
    sentencing require that whole categories of crimes and offenders be
    
    removed from exposure to the death penalty because they presented
    
    an insufficient level of moral culpability to warrant the most
    
    extreme form of punishment. Prior to Penry I, the Court thus
    
    exempted murderers whose crimes reflect only minimal or ordinary
    
    moral      depravity,    Godfrey       v.         Georgia,    
    446 U.S. 420
    ,    433,
    
    (1980)(plurality        opinion);      rapists        of     adult    women,    Coker    v.
    
    Georgia, 
    433 U.S. 584
     (1977); murderer-accomplices who lack a
    
    sufficiently culpable state of mind, Enmund v. Florida, 
    458 U.S. 782
     (1982); and murderers who were under the age of 16 at the time
    
    of the crime, Thompson v. Oklahoma, 
    487 U.S. 815
    , 838 (1988)
    
    (plurality opinion). Subsequent to Penry I & II, the court applied
    
    the   same    principles      to     exempt       mentally     retarded      persons    and
    
    offenders who were under the age of 18 at the time of the crime.
    
    Atkins v. Virginia, 
    536 U.S. 304
     (2002); Roper v. Simmons, 
    543 U.S. 9
    551   (2005).     Even   dissenters    who    disagreed      with   categorical
    
    exemptions      often    expressed    support       for    the   constitutional
    
    requirement that the capital sentencer be empowered and allowed to
    
    make particularized selection of only those for the death penalty
    
    who   were   sufficiently      culpable      based    on    an   individualized
    
    assessment of the mitigating evidence and the circumstances of each
    
    case.2 This signifies a deep and abiding establishment of the
    
    principle of individualized capital sentencing on the basis of each
    
    offender's      degree   of   culpability     and    full    consideration   of
    
    mitigation evidence.
    
          The Supreme Court in Penry I in 1989 reaffirmed the foregoing
    
    clearly established principles that a capital sentencer must be
    
    empowered to individually assess the culpability and just desert of
    
    each defendant and individually determine the appropriate sentence
    
    
    
          2
           See Atkins, 536 U.S. at 318, 
    122 S. Ct. 2242
    ; see also id. at
    349-351, 
    122 S. Ct. 2242
     (stating that "only the sentencer can
    assess whether his retardation reduces his culpability enough to
    exempt him from the death penalty")(Scalia, J., Rehnquist, J., and
    Thomas, J., dissenting); Roper, 125 S.Ct. at 1224 (stating that
    "[i]n capital cases, this Court requires the sentencer to make an
    individualized determination, which includes weighing aggravating
    factors and mitigating factors") (Scalia, J., dissenting);
    Thompson, 487 U.S. at 870, 
    108 S. Ct. 2687
     (recognizing a
    constitutional    trend    towards    "individualized    sentencing
    determinations rather than automatic death sentences for certain
    crimes") (Scalia, J., Rehnquist, J., and White, J., dissenting);
    and Eddings v. Oklahoma, 
    455 U.S. 104
    , 121 (1982) (interpreting
    Lockett as requiring an individualized consideration of mitigating
    circumstances) (Burger, J., White, J., Blackmun, J., and Rehnquist,
    J., dissenting).
    
    
    
                                          10
    for him based on all the relevant mitigating evidence. The Penry I
    
    Court held that:
    
    
    
         (1) at the time Penry's conviction became final, it was clear
    
         from Lockett and Eddings that a State could not, consistent
    
         with   the    Eighth    and   Fourteenth      Amendments,       prevent   the
    
         sentencer from considering and giving effect to evidence
    
         relevant to the defendant's background or character or to the
    
         circumstances of the offense that mitigate against imposing
    
         the death penalty. Penry I, 492 U.S. at 318;
    
    
    
         (2) [t]he rule Penry [sought]--that when such mitigating
    
         evidence [of his mental retardation and abused childhood] is
    
         presented, Texas juries must ... be given jury instructions
    
         that   make   it   possible    for    them    to   give    effect    to   that
    
         mitigating evidence in determining whether the death penalty
    
         should be imposed--is not a 'new rule' under Teague because it
    
         is dictated by Eddings and Lockett. Id. at 318-19;
    
    
    
         (3) "[u]nderlying Lockett and Eddings is the principle that
    
         punishment     should    be   directly       related      to   the   personal
    
         culpability of the criminal defendant," Id. at 319;
    
    
    
    
                                          11
         (4) "[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." Id.;
    
    
    
         (5) "In order to ensure reliability in the determination that
    
         death is the appropriate punishment in a specific case, the
    
         jury   must   be     able   to   consider   and   give   effect   to   any
    
         mitigating evidence relevant to a defendant's background and
    
         character or the circumstances of the crime." Id. at 328; and
    
    
    
         (6) therefore, "in the absence of instructions informing the
    
         jury that it could consider and give effect to the mitigating
    
         evidence of Penry's mental retardation and abused [childhood]
    
         background by declining to impose the death penalty, ... the
    
         jury was not provided with a vehicle for expressing its
    
         reasoned moral response to that evidence in rendering its
    
         sentencing decision." Id. at 328 (internal quotations and
    
         citations omitted).
    
    
    
         Between the time of the Penry I decision in 1989 and the
    
    pertinent state court habeas denial of habeas relief to Cole on
    
    November    24,   1999,    the   Supreme    Court   reaffirmed   or    clearly
    
    established the meaning of relevant mitigating evidence in capital
    
    
    
                                           12
    punishment sentencing proceedings, the requirement that the capital
    
    sentencer     be   empowered   and   allowed   to    make   individualized
    
    culpability    assessments     and   selections     of   sentences   without
    
    interference, the requirement that there be no limitation on the
    
    sentencer’s consideration of any relevant mitigating circumstance,
    
    the requirement that the sentencer not be constrained in the manner
    
    in which it gives effect to relevant mitigating evidence, and
    
    adopted and applied the Boyde reasonable likelihood rule for
    
    determining when limitation on the sentencer’s ability and freedom
    
    to fully consider and fully give effect to relevant mitigating
    
    evidence violated the Eighth Amendment.
    
         In McKoy v. North Carolina, 
    494 U.S. 433
     (1990) the Court
    
    reaffirmed or clearly established that the principle of relevance
    
    under Federal Rule of Evidence 401 applies in capital cases and
    
    cannot be distorted by the state so as to interfere with the
    
    sentencer's full consideration and use of relevant evidence in
    
    culpability assessment and sentence selection. "It is universally
    
    recognized that evidence, to be relevant to an inquiry, need not
    
    conclusively prove the ultimate fact in issue, but only have 'any
    
    tendency to make the existence of any fact that is of consequence
    
    to the determination of the action more probable or less probable
    
    than it would be without the evidence.' FED. R. EV. 401."            McKoy,
    
    494 U.S. at 440 (quoting T.L.O., 469 U.S. at 345 (1985)).
    
    
    
    
                                         13
            In Payne v. Tennessee, 
    501 U.S. 808
     (1991), Chief Justice
    
    Rehnquist, writing for a six-Justice majority, reaffirmed that
    
    "States cannot limit the sentencer's consideration of any relevant
    
    circumstance that could cause it to decline to impose the penalty.
    
    In    this   respect,    the   State    cannot    challenge    the   sentencer's
    
    discretion, but must allow it to consider any relevant information
    
    offered by the defendant." (quoting McCleskey v. Kemp, 
    481 U.S. 279
    
    (1987).
    
           The Court in Buchanan v. Angelone, 
    522 U.S. 269
    , 276-77
    
    (1998), reaffirmed that a state must empower and allow its capital
    
    sentencer to select either the death penalty or life imprisonment
    
    according to an individualized assessment of culpability level
    
    based on all of the defendant's relevant mitigating evidence.
    
    Buchanan declared that "[i]n the selection phase, [Supreme Court]
    
    cases have established that the sentencer may not be precluded from
    
    considering, and may not refuse to consider, any constitutionally
    
    relevant mitigating evidence." Id. at 276. It also reaffirmed that
    
    states do not have an unhindered ability to create sentencing
    
    schemes as they see fit, and that to be constitutional they must
    
    not    "preclude   the    jury   from    giving    effect     to   any   relevant
    
    mitigating evidence." Id.         Finally, the Court distinguished Penry
    
    I from the facts of Buchanan, making clear that Penry I involved a
    
    Texas special issues scheme where the instructions "constrain[ed]
    
    
    
    
                                            14
    the   manner   in      which    the     jury       was       able    to    give    effect      to
    
    mitigation." 522 U.S. at 277.
    
          In Boyde v. California, 
    494 U.S. 370
     (1990) the Court held
    
    that (1) the Eighth Amendment requires that the jury be able to
    
    consider and give effect to all relevant mitigating evidence
    
    offered by petitioner (citing Lockett v. Ohio, 
    438 U.S. 586
     (1978);
    
    Eddings v. Oklahoma, 
    455 U.S. 104
     (1982); and Penry, supra) and (2)
    
    where the claim is that a challenged capital sentencing jury
    
    instruction    is      ambiguous       and    therefore         subject       to       erroneous
    
    interpretation, the proper inquiry is whether there is a reasonable
    
    likelihood that the jury has applied the instruction in a way that
    
    prevents   the      consideration        of        relevant         mitigating         evidence.
    
    Although a defendant need not establish that the jury was more
    
    likely than      not    to   have      been    impermissibly              inhibited      by    the
    
    instruction, a capital sentencing proceeding does not violate the
    
    Eighth   Amendment      if     there    is     only      a    possibility         of    such    an
    
    inhibition. Id.
    
          A few years later, the Court in Johnson v. Texas, 
    509 U.S. 350
    
    (1993), held that where the question is raised whether the Texas
    
    special issues instruction allowed adequate consideration of the
    
    mitigating evidence of petitioner's youth, "the standard against
    
    which we assess whether jury instructions satisfy the rule of
    
    Lockett and Eddings was set forth in Boyde v. California, 
    494 U.S. 370
     (1990). The Court there held that a reviewing court must
    
    
    
                                                  15
    determine “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.” Id. at 380.
    
    Although the reasonable likelihood standard does not require that
    
    the defendant prove that it was more likely than not that the jury
    
    was prevented from giving effect to the evidence, the standard
    
    requires more than a mere possibility of such a bar.
    
          Thus, the Court in Johnson acknowledged that the special
    
    issues instruction had caused a possible constitutional violation
    
    and adopted the Boyde reasonable likelihood test for the purpose of
    
    determining whether a violation had indeed occurred. Further, the
    
    Court in Johnson applied the Boyde test and concluded that there
    
    was not a reasonable likelihood that the instruction had prevented
    
    a   full   consideration   of   the   relevant   mitigating   evidence   of
    
    Johnson's youth for the purpose of assessing his culpability. To
    
    support its conclusion the Court's majority opinion undertook an
    
    extensive analysis of the evidence in that particular case and
    
    demonstrated to its own satisfaction that the jury's mental process
    
    in considering the evidence for the purpose of answering the future
    
    dangerousness special issue was substantially the same as that of
    
    a jury which had considered the evidence for the purpose of
    
    
    
    
                                          16
    assessing the defendant's culpability and selecting the appropriate
    
    sentence.3
    
         In essence, the Court's majority indicated that the jury's
    
    consideration of the mitigating evidence in answering the special
    
    issue mimicked or served as a proxy for a consideration of the
    
    evidence for the purposes of assessing the defendant's culpability
    
    and selection of the appropriate sentence for him and his crime.
    
    For some jurists, this is a troublesome analysis or rationale, as
    
    
    
         3
            Thus, the Court stated that answering the future
    dangerousness special issue "is not independent of an assessment of
    personal culpability", involving "the extent to which youth
    influenced the defendant's conduct." Johnson, 509 U.S. at 369. "If
    any jurors believed that the transient qualities of petitioner's
    youth made him less culpable for the murder, there is no reasonable
    likelihood that those jurors would have deemed themselves
    foreclosed from considering that in evaluating petitioner's future
    dangerousness." Id. at 370. Consideration of the relevant qualities
    of petitioner's youth still "allow[s] the jury to give effect to
    [this] mitigating evidence in making the sentencing decision." Id.
    (internal citations omitted).
    
    The jurors were required to "exercise a range of judgment and
    discretion." Id.(citing Adams v. Texas, 
    448 U.S. 38
    , 46 (1980)).
    "[A] Texas capital jury deliberating over the Special Issues is
    aware of the consequences of its answers, and is likely to weigh
    mitigating evidence as it formulates these answers in a manner
    similar to that employed by capital juries in 'pure balancing'
    States." Id. at 370- 71 (citing, Franklin v. Lynaugh, 
    487 U.S. 164
    ,
    182 n.12 (1988) (plurality opinion)). "[T]he questions compel the
    jury to make a moral judgment about the severity of the crime and
    the defendant's culpability. The Texas statute directs the
    imposition of the death penalty only after the jury has decided
    that the defendant's actions were sufficiently egregious to warrant
    death." Id. at 371 (internal citations omitted). "[C]onsideration
    of the second special issue is a comprehensive inquiry that is more
    than a question of historical fact." Id.
    
    
    
                                    17
    evidenced          by       the   strong   dissent    by   four    of    the    Justices.4
    
    Therefore, it is important to note that whether the special issue
    
    adequately mimicked a comparative culpability analysis in Johnson
    
    is     largely          a    factual   inquiry     based    on    the    character     and
    
    propensities of the defendant and the circumstances of the crime in
    
    that particular case. The holding or legal rule of decision in
    
    Johnson, which is controlling and applicable to the present case
    
    for purposes of AEDPA, was simply that when the special issues
    
    instruction raises the question of whether the jury was precluded
    
    from       fully    considering        and   giving    effect     to    the    defendant's
    
    relevant mitigating evidence, the issue must be determined by
    
    applying       the          Boyde   reasonable     likelihood     test.       The   Court's
    
    subsequent straightforward application of the Boyde test in Penry
    
    v. Johnson, 532 U.S.782 (2001) (Penry II), without reference to
    
    Johnson or its extensive analysis of its facts corroborates this
    
    conclusion.
    
           Under AEDPA, the Cole panel was required to determine whether
    
    the state court’s denial of state habeas relief to Cole on the
    
    merits on November 24, 1999 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. In sum, the Supreme Court has said that § 2254(d)(1)
    
    
           4
          See Johnson v. Texas, 
    509 U.S. 350
    , 375 (1993) (O'Connor, J.,
    Blackmun, J., Stevens, J., and Souter, J., dissenting).
    
    
                                                  18
    places a new constraint on the power of a federal habeas court to
    
    grant a state prisoner's application for a writ of habeas corpus
    
    with respect to claims adjudicated on the merits in state court.
    
    Under § 2254(d)(1), the writ may issue only if one of the following
    
    two conditions is satisfied--the state-court adjudication resulted
    
    in a decision that (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." Under the "contrary to" clause, a federal
    
    habeas court may grant the writ if the state court arrives at a
    
    conclusion opposite to that reached by this Court on a question of
    
    law or if the state court decides a case differently than this
    
    Court has on a set of materially indistinguishable facts.            Under
    
    the "unreasonable application" clause, a federal habeas court may
    
    grant the writ if the state court identifies the correct governing
    
    legal   principle   from   this   Court's   decisions   but   unreasonably
    
    applies that principle to the facts of the prisoner's case.
    
         The panel opinion, however, does not describe, analyze or
    
    review the pertinent state court’s opinion or reasons for its
    
    decision in this case.      Consequently, it is difficult to see how
    
    the panel was able to determine with any confidence that the
    
    pertinent state court decision was or was not contrary to or an
    
    unreasonable application of clearly established federal law as
    
    
    
                                        19
    determined by the Supreme Court’s decisions.                 This in itself is
    
    reason enough       for   an   en   banc    reconsideration     of    the    panel’s
    
    decision.
    
         The more important reason that en banc reconsideration is
    
    needed, however, is that the Cole panel opinion on its face appears
    
    to result in a decision that is contrary to clearly established
    
    federal law as determined by the Supreme Court’s decisions. For the
    
    reasons explained above and in my separate opinion in Nelson v.
    
    Dretke, the        Supreme Court decisions dating from Penry I to the
    
    present     time    reaffirm     and     clearly    establish     the    generally
    
    applicable Eighth and Fourteenth Amendment requirements that a
    
    State must     empower     and   allow     its    capital   sentencer       to   fully
    
    consider and fully give effect to a defendant’s relevant mitigating
    
    evidence. Cole’s moral culpability was a factor of consequence to
    
    the outcome of the sentencing proceeding. Cole’s evidence of his
    
    organic     neurological       defect,     lack    of   impulse      control,     and
    
    destructive family background was relevant mitigating evidence, as
    
    the Cole panel concedes, because it made it more likely that the
    
    jury would assess Cole with a lower level of culpability than it
    
    would have without that evidence. The panel does not dispute, but
    
    tacitly admits, that the State failed to comply with its duty and
    
    responsibility to empower and allow the sentencing jury to fully
    
    consider and fully give effect to Cole’s relevant mitigating
    
    evidence by assessing his culpability and selecting his sentence on
    
    
    
                                               20
    the basis of that evidence and assessment.                 Consequently, it is
    
    plain that there is a significant possibility that the State
    
    violated Cole’s Eighth Amendment rights by lack of compliance with
    
    the capital sentencing requirements. Accordingly, either the panel
    
    or this en banc court is required to apply the Boyde test to
    
    determine whether a violation indeed exists, and, if so, apply the
    
    Brecht harmless error test before granting habeas relief.
    
          The panel opinion erroneously concludes that Penry I and Penry
    
    II have no application here because the Supreme Court limited the
    
    scope of those decisions in Johnson, when it observed that there
    
    was   expert   medial   testimony        that   the   defendant   was   mentally
    
    retarded and that his condition prevented him from learning from
    
    his mistakes, so that the only logical manner in which Penry’s jury
    
    could have considered the evidence of his mental retardation the
    
    future dangerousness special issue was as an               aggravating factor.
    
    Further, the panel took the position that the Supreme Court also
    
    limited Penry I when it indicated in Graham v. Collins, 
    506 U.S. 461
     (1993) that “family background” evidence falls within the broad
    
    scope of Texas’s special issues.
    
          Graham does not establish any precedent or holding that adds
    
    to or detracts from the federal law clearly established by the
    
    Supreme Court’s cases for purposes of AEDPA. Graham presented a
    
    collateral     attack   on   a   death    sentence    by   a   petitioner   whose
    
    conviction became final before Penry I was decided, and thus the
    
    
    
                                             21
    threshold issue, the only one decided, was whether under Teague v.
    
    Lane, 
    489 U.S. 288
     (1989), granting Graham the relief he sought
    
    would create a new rule of constitutional law.           Because the answer
    
    was “yes,” instead of reaching the merits of Graham’s claims, the
    
    Court    considered      only   the   preliminary   question    of     whether
    
    reasonable jurists would have felt compelled by existing precedent
    
    to rule in his favor.
    
         The panel also misinterprets Johnson v. Texas. As I explained
    
    earlier, the holdings in Johnson were simply that (1) when a
    
    defendant’s challenge to a Texas special issues instruction raises
    
    the question of whether there was an Eighth Amendment violation
    
    because the capital sentencer was precluded from fully               considering
    
    and giving full effect to the defendant’s relevant mitigating
    
    evidence, the reviewing court must apply the Boyde reasonable
    
    likelihood test to determine whether such a violation occurred; and
    
    (2) under the particular evidence and circumstances in Johnson,
    
    according to the extensive factual analysis by the majority, there
    
    was no reasonable likelihood that the special issues instruction
    
    precluded the capital sentencer from fully considering and fully
    
    giving   effect     to   the    mitigation   evidence,   because      in   that
    
    particular case the mental and analytical processes of the capital
    
    sentencer in answering the special issue of future dangerous
    
    question were substantially similar to that of a reasonable capital
    
    sentencer   using     the   evidence   for   purposes    of   assessing     the
    
    
    
                                           22
    defendant’s culpability and selecting the appropriate sentence on
    
    the basis of that assessment.           Johnson’s passages distinguishing
    
    Penry’s mental retardation evidence from Johnson’s evidence of his
    
    youth, and contrasting how they would affect the jurors’ answer to
    
    the dangerousness special issue did not constitute a holding that
    
    in any way limited the requirement that the capital sentencer be
    
    enabled and allowed to give full consideration and full effect to
    
    all of a defendant’s relevant mitigating evidence.              If it had been
    
    the intention of the Court to create a double edged evidence rule
    
    restricting the principles articulated by Penry to cases involving
    
    purely aggravating evidence, there would have been no need in that
    
    case   for   the   Court   to   adopt   and    apply   the   Boyde   reasonable
    
    likelihood test; under a double edged evidence theory the Court
    
    could have simply determined that evidence of youth is not purely
    
    aggravating evidence and therefore, following that theory, Penry I
    
    would not apply to require an additional instruction in order to
    
    avoid a constitutional violation.            The Court’s decision in Johnson
    
    does not anywhere say that it is adopting any rule except the rule
    
    that when a Penry I violation challenge is brought, the reviewing
    
    court must apply the Boyde test to ascertain if there has been a
    
    violation.     Furthermore, the attempt to read an implied double
    
    edged evidence limitation upon Penry I into the Johnson opinion
    
    leads to many inexplicable inconsistencies.             Since the principles
    
    articulated in Penry        have general application to all capital
    
    
    
                                            23
    sentencers in all death penalty jurisdictions, one would expect
    
    that, if there were such a limitation, it would be reflected or
    
    discussed by the Supreme Court decisions subsequent to Johnson –
    
    but to my knowledge there has been none. At least, one would expect
    
    Justice   Kennedy,    Johnson’s   author,    to    refer    to   it   in   other
    
    opinions,   but   instead    he   silently   and    fully    joined    in   all
    
    subsequent opinions by Justice O’Connor in which she forcefully
    
    reaffirmed the view of Lockett, Eddings and Penry I that the
    
    principles set forth therein apply to any relevant evidence or
    
    factor that might tend to have a mitigative effect upon the capital
    
    sentencer’s decision of whether to decline to impose the death
    
    penalty, e.g. Penry II and Tennard.
    
         Consequently, when correctly applied, the clearly established
    
    principles of federal law as determined by the Supreme Court in
    
    Lockett, Eddings, Penry I, McKoy, Boyde, Payne, McClesky, and
    
    Buchanan,   require    the    conclusion     that    Cole’s      evidence    of
    
    neurological defect, lack of impulse control, and destructive
    
    family background is relevant mitigating evidence that Texas must
    
    enable and allow its capital sentencer to give full consideration
    
    and full effect in the assessment of his culpability and the
    
    selection of his sentence; and because there is a question whether
    
    the capital sentencer in Cole’s case was enabled and allowed to do
    
    so, we must apply the Boyde test and conclude that there is more
    
    than a reasonable likelihood that the capital sentencer in his case
    
    
    
                                         24
    was not able to fully consider the evidence for the purpose of
    
    assessing his culpability or to give full effect to the evidence by
    
    choosing the appropriate sentence for Cole and his crime on the
    
    basis of that assessment and all of the evidence and circumstances
    
    of the case.
    
         For these reasons I respectfully dissent from the majority’s
    
    decision to deny an en banc hearing in this case.
    
    
    
    
                                    25