97 F.3d 751 (5th Cir. 1996), 94-20563, Drinkard v. Johnson

Docket Nº:94-20563.
Citation:97 F.3d 751
Party Name:Richard Gerry DRINKARD, Petitioner-Appellant, v. Gary L. JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee.
Case Date:October 07, 1996
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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97 F.3d 751 (5th Cir. 1996)

Richard Gerry DRINKARD, Petitioner-Appellant,


Gary L. JOHNSON, Director, Texas Department of Criminal

Justice, Institutional Division, Respondent-Appellee.

No. 94-20563.

United States Court of Appeals, Fifth Circuit

October 7, 1996

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Douglas M. O'Brien, Moen, Cain & O'Brien, Houston, TX, for petitioner-appellant.

Margaret Portman Griffey, Dan Morales, Attorney General, Office of the Attorney General for the State of Texas, Austin, TX, for respondent-appellee.

Appeal from the United States District Court for the Southern District of Texas.

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.


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. 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

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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 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.


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

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at 28 U.S.C. § 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, 90 F.3d 676, 679-80 (2d Cir.1996). "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, 511 U.S. 244, 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.


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


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...

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