Tennard v. Cockrell, 00-20915.

Decision Date03 January 2003
Docket NumberNo. 00-20915.,00-20915.
Citation317 F.3d 476
PartiesRobert James TENNARD, Petitioner-Appellant, v. Janie COCKRELL, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee.
CourtU.S. Court of Appeals — Fifth Circuit

Mandy Welch, Burr & Welch, Houston, TX, for Petitioner-Appellant.

Charles A. Palmer, Asst. Atty. Gen., Austin, TX, for Respondent-Appellee.

Appeal from the United States District Court for the Southern District of Texas; Lynn N. Hughes, Judge.

ON REMAND FROM THE UNITED STATES SUPREME COURT

Before SMITH, BENAVIDES and DENNIS, Circuit Judges.

BENAVIDES, Circuit Judge:

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

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

DENNIS, Circuit Judge, dissenting:

Although I agree with the panel majority that Tennard's claim under Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), is not properly before this court because petitioner did not raise this claim in his district court habeas petition, I continue to dissent from the now restored panel opinion, Tennard v. Cockrell, 284 F.3d 591 (5th Cir.2002), for the reasons given in my dissent there.

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9 cases
  • Tennard v. Dretke
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • March 1, 2006
    ...death penalty to the mentally retarded. See Tennard v. Cockrell, 537 U.S. 802, 123 S.Ct. 70, 154 L.Ed.2d 4 (2002); Tennard v. Cockrell, 317 F.3d 476, 477 (5th Cir.2003). Because Tennard never argued that the Eighth Amendment prohibited his execution due to his low IQ (but rather objected to......
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    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • February 12, 2009
  • Tennard v. Dretke
    • United States
    • United States Supreme Court
    • June 24, 2004
    ...of the special issues, suggesting that Tennard's low IQ was irrelevant in mitigation, but relevant to future dangerousness. Pp. 288-289. 317 F. 3d 476, reversed and O'CONNOR, J., delivered the opinion of the Court, in which STEVENS, KENNEDY, SOUTER, GINSBURG, and BREYER, JJ., joined. REHNQU......
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    • United States
    • United States District Courts. 5th Circuit. United States District Court (Eastern District of Louisiana)
    • June 16, 2011
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