Tennard v. Cockrell, 00-20915.
Decision Date | 03 January 2003 |
Docket Number | No. 00-20915.,00-20915. |
Citation | 317 F.3d 476 |
Parties | Robert James TENNARD, Petitioner-Appellant, v. Janie COCKRELL, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee. |
Court | U.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.
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) ( ); Smith v. Bowersox, 311 F.3d 915, 923 (8th Cir.2002) ( ).
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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