542 U.S. 274 (2004), 02-10038, Tennard v. Dretke

Docket Nº:No. 02-10038
Citation:542 U.S. 274, 124 S.Ct. 2562, 159 L.Ed.2d 384, 72 U.S.L.W. 4540
Party Name:TENNARD v. DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION
Case Date:June 24, 2004
Court:United States Supreme Court

Page 274

542 U.S. 274 (2004)

124 S.Ct. 2562, 159 L.Ed.2d 384, 72 U.S.L.W. 4540

TENNARD

v.

DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION

No. 02-10038

United States Supreme Court

June 24, 2004

Argued March 22, 2004

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

[124 S.Ct. 2563] Syllabus [*] During his capital murder trial's penalty phase, petitioner Tennard presented evidence that he had an IQ of 67. The jury was instructed to determine the appropriate punishment by considering two [124 S.Ct. 2564] "special issues," which inquired into whether the crime was committed deliberately and whether the defendant posed a risk of future dangerousness. These were materially identical to two special issues found insufficient in Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256, for the jury to give effect to Penry's mitigating mental retardation and childhood abuse evidence. Tennard's jury answered both special issues affirmatively, and Tennard was sentenced to death. The Federal District Court denied Tennard's federal habeas petition in which he claimed that his death sentence violated the Eighth Amendment as interpreted in Penry, and denied a certificate of appealability (COA). The Fifth Circuit agreed that Tennard was not entitled to a COA. It applied a threshold test to Tennard's mitigating evidence, asking whether it met the Fifth Circuit's standard of "constitutional relevance" in Penry cases--that is, whether it was evidence of a "uniquely severe permanent handicap" that bore a "nexus" to the crime. The court concluded that (1) low IQ evidence alone does not constitute a uniquely severe condition, and no evidence tied Tennard's IQ to retardation, and (2) even if his low IQ amounted to mental retardation evidence, Tennard did not show that his crime was attributable to it. After this Court vacated the judgment and remanded for further consideration in light of Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335, the Fifth Circuit reinstated its prior opinion.

Held:

Because "reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong," Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542, a COA should have issued. Pp. 2569-2573.

(a) A COA should issue if an applicant has "made a substantial showing of the denial of a constitutional right," 28 U.S.C. § 2253(c)(2), by demonstrating "that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong," 529 U.S., at 484, 120 S.Ct. 1595. Relief may not be granted unless the state court adjudication "was contrary to, or involved an unreasonable application of, clearly

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established Federal law, as determined by" this Court. § 2254(d)(1). P. 2569.

(b) The Fifth Circuit assessed Tennard's Penry claim under an improper standard. Its threshold "constitutional relevance" screening test has no foundation in this Court's decisions. Relevance was not at issue in Penry. And this Court spoke in the most expansive terms when addressing the relevance standard directly in McKoy v. North Carolina, 494 U.S. 433, 440-441, 110 S.Ct. 1227, 108 L.Ed.2d 369, finding applicable the general evidentiary standard that " ' "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," ' " Id., at 440, 110 S.Ct. 1227. Once this low relevance threshold is met, the "Eighth Amendment requires that the jury be able to consider and give effect to" a capital defendant's mitigating evidence. Boyde v. California, 494 U.S. 370, 377-378, 110 S.Ct. 1190, 108 L.Ed.2d 316. The Fifth Circuit's test is inconsistent with these principles. Thus, neither the "uniquely severe" nor the "nexus" element of the Fifth Circuit's test was a proper reason not to reach the substance of Tennard's Penry claims. Pp. 2569-2572.

(c) Turning to the analysis that the Fifth Circuit should have conducted, reasonable jurists could conclude that Tennard's low IQ evidence was relevant mitigating evidence, and that the Texas Court of Criminal Appeals' application of Penry was unreasonable, since the relationship [124 S.Ct. 2565] between the special issues and Tennard's low IQ evidence has the same essential features as that between those issues and Penry's mental retardation evidence. Impaired intellectual functioning has mitigating dimension beyond the impact it has on the ability to act deliberately. A reasonable jurist could conclude that the jury might have given the low IQ evidence aggravating effect in considering Tennard's future dangerousness. Indeed, the prosecutor pressed exactly the most problematic interpretation of the special issues, suggesting that Tennard's low IQ was irrelevant in mitigation, but relevant to future dangerousness. Pp. 2572-2573.

317 F.3d 476, reversed and remanded.

O'CONNOR, J., delivered the opinion of the Court, in which STEVENS, KENNEDY, SOUTER, GINSBURG, and BREYER, JJ., joined. REHNQUIST, C.J., post, p. 2573, SCALIA, J., post, p. 2575, and THOMAS, J., post, p. 2576, filed dissenting opinions.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

COUNSEL

Richard H. Burr, Burr & Welch, P.C., Houston, Texas, Counsel of Record, Robert C. Owen, Owen & Rountree, L.L.P., Austin, Texas, Jordan M. Steiker, Austin, Texas, for Petitioner.

Greg Abbott, Attorney General of Texas, Barry R. McBee, First Assistant Attorney General, Don Clemmer, Acting Deputy Attorney General for Criminal Justice, Gena Bunn Chief, Postconviction Litigation Division, Counsel of Record, Edward L. Marshall, Deputy Chief, Postconviction Litigation Division, Tommy L. Skaggs, Assistant Attorney General, Austin, Texas, for Respondent.

Richard H. Burr, Burr & Welch, P.C., Houston, Texas, Counsel of Record, Robert C. Owen, Owen & Rountree, L.L.P., Austin, Texas, Jordan M. Steiker, Austin, Texas, for petitioner.

OPINION

O'CONNOR, Justice.

Page 276

In Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989) (Penry I), we held that the Texas capital sentencing scheme provided a constitutionally inadequate vehicle for jurors to consider and give effect to the mitigating evidence of mental retardation and childhood abuse the petitioner had presented. The petitioner in this case argues that the same scheme was inadequate for jurors to give effect to his evidence of low intelligence. The Texas courts rejected his claim, and a Federal District Court denied his petition for a writ of habeas corpus. We conclude that "reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong," Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000), and therefore hold that a certificate of appealability should have issued.

I

Petitioner Robert Tennard was convicted by a jury of capital murder in October 1986. The evidence presented at trial indicated that Tennard and two accomplices killed two of his neighbors and robbed their house. Tennard himself stabbed one of the victims to death, and one of the [124 S.Ct. 2566] accomplices killed the other victim with a hatchet.

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During the penalty phase of the trial, defense counsel called only one witness--Tennard's parole officer--who testified that Tennard's Department of Corrections record from a prior incarceration indicated that he had an IQ of 67. App. 28-29. He testified that the IQ test would have been administered as a matter of course. Ibid. The report, which indicated that Tennard was 17 years old at the time it was prepared, was admitted into evidence. On cross-examination, the parole officer testified that he did not know who had administered the test. Id., at 30. The government introduced evidence in the penalty phase regarding a prior conviction for rape, committed when Tennard was 16. The rape victim testified that she had escaped through a window after Tennard permitted her to go to the bathroom to take a bath, promising him she would not run away. Id., at 16-17.

The jury was instructed to consider the appropriate punishment by answering the two "special issues" used at the time in Texas to establish whether a sentence of life imprisonment or death would be imposed:

"Was the conduct of the defendant, Robert James Tennard, that caused the death of the deceased committed deliberately and with the reasonable expectation that the death of the deceased or another would result?" Id., at 69 (the "deliberateness special issue").

"Is there a probability that the defendant, Robert James Tennard, would commit criminal acts of violence that would constitute a continuing threat to society?" Id., at 70 (the "future dangerousness special issue").

In his penalty phase closing argument, defense counsel relied on both the IQ score and the rape victim's testimony to suggest that Tennard's limited mental faculties and gullible nature mitigated his culpability:

"Tennard has got a 67 IQ. The same guy that told this poor unfortunate woman [the rape victim] that was trying to work that day, 'Well, if I let you in there, will you

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leave?' And he believed her. This guy with the 67 IQ, and she goes in and, sure enough, she escapes, just like she should have. That is uncontroverted testimony before you, that we have got a man before us that has got an intelligence quotient ... that is that low." Id., at 51.

In rebuttal, the prosecution suggested that the low IQ evidence was simply irrelevant to the question of mitigation:

"But whether he has a low IQ or not is not really the issue. Because the legislature, in asking you to address that question [the future dangerousness special issue], the reasons why he became a danger are not really relevant. The...

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