IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 92-2610

_____________________

JEFFREY DEAN MOTLEY,

Petitioner-Appellant,

v.

JAMES A. COLLINS, Director, 

Texas Department of Criminal Justice,

Institutional Division,

Respondent-Appellee.

_________________________________________________________________

Appeal from the United States District Court

for the Southern District of Texas

_________________________________________________________________

(April 1, 1994)

Before KING, DAVIS and WIENER, Circuit Judges.

KING, Circuit Judge:

The opinion and dissenting opinion in this case filed on

September 21, 1993, and reprinted at 3 F.3d 781 (5th Cir. 1993),

are withdrawn, and the following opinion is substituted therefor. 

Jeffrey Dean Motley, a Texas death row inmate convicted of

capital murder, appeals from the district court's decision

denying his petition for a writ of habeas corpus. For the

reasons discussed below, we affirm the district court's decision

denying the writ.
 

1 Specifically, there was evidence that Duran's shorts had

been removed and that her swimsuit had been cut away at the

crotch.

2

I. BACKGROUND

On the morning of July 22, 1984, Maria Duran left her home

to drive to a friend's apartment to go swimming. She never

arrived. Duran's family called the police, who began

investigating her disappearance.

Seven days later, on July 29, 1984, the police arrested

Jeffrey Motley as he was driving Duran's car. A search of the

car uncovered a sawed-off shotgun, a number of shotgun shells,

and a hunting knife. Police also discovered traces of human

blood on the spare tire in the trunk of Duran's car and on one of

the tennis shoes that Motley was wearing. Duran's credit cards,

driver's license, and social security card were found in a trash

bin near the apartment complex where Motley was arrested.

On August 1, 1984, three days after Motley's arrest, police

found Duran's body in a field. There were some signs that Duran

had been sexually assaulted,1 but the evidence was ultimately

found to be inconclusive. The cause of death, according to the

medical examiner, was a gunshot wound in the back. Investigators

could not determine, however, whether the shotgun slug that

killed Duran was fired from the shotgun found in Duran's car.

Based on the evidence found in Duran's car at the time

Motley was arrested, as well as other circumstantial evidence

linking Motley to the crime, the jury convicted Motley of capital

murder. After hearing evidence on issues relevant to sentencing,
3

including evidence that Motley was physically and sexually abused

as a child, the jury was presented with two of the three Texas

special issues:

(1) Was the conduct of the Defendant that caused the

death of the deceased committed deliberately and

with the reasonable expectation that the death of

the deceased would result?

(2) Is there a probability that the defendant would commit

criminal acts of violence that would constitute a

continuing threat to society?

See TEX. CODE CRIM. PROC. ANN. art. 37.071(b) (Vernon 1989).

The jury answered both of these questions affirmatively and, as a

result, Motley was automatically sentenced to death.

Motley's conviction and sentence were affirmed on direct

appeal. See Motley v. State, 773 S.W.2d 283 (Tex. Crim. App.

1989). The Texas Court of Criminal Appeals denied rehearing on

May 24, 1989. Because Motley did not petition the Supreme Court

for writ of certiorari, his conviction became final ninety days

later--about two months after the Supreme Court issued its

opinion in Penry v. Lynaugh, 492 U.S. 302 (1989). 

Thereafter, Motley filed a petition for habeas corpus in state

court, which was denied on July 22, 1992. See Ex Parte Motley,

No. 23806 (Tex. Crim. App. 1992). Motley then proceeded to

federal district court, where the judge denied habeas relief on

all of his claims. This appeal followed.

II. INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM

In district court, Motley argued that his trial counsel

rendered ineffective assistance of counsel by committing errors
4

at various stages of his capital murder trial. Among other

things, Motley argued that his counsel rendered ineffective

assistance by: (a) agreeing with the State, during voir dire,

that the term "deliberately" under the first special issue means

essentially the same thing as "intentionally" in the guilt/

innocence phase of the trial; (b) calling Motley as a witness

after the State rested with evidence that, according to Motley,

was insufficient to support a conviction; (c) being generally

unfamiliar with capital sentencing law--particularly, the

admissibility of unadjudicated extraneous offenses; and (d)

failing to investigate and introduce evidence of Motley's brain

damage during the punishment phase of the trial.

The district court rejected Motley's ineffective assistance

of counsel claim. It first reasoned, "The state court found that

Motley received effective assistance at all phases of his trial. 

Because the record supports those factual findings, they are

presumed correct." The district court further reasoned, with

respect to each of the alleged errors, that they either

represented valid strategic choices by Motley's trial counsel or

did not prejudice his defense.

As explained below, the district court correctly rejected

Motley's ineffective assistance of counsel claim. Although we

disagree with the district court's assertion that the state

court's finding of effective assistance is entitled to a

presumption of correctness as a factual finding under 28 U.S.C. §

2254(d), we agree that on this record Motley has failed to show
5

how the alleged errors prejudiced the outcome of either the

guilt/innocence or punishment phase of his trial.

A. The Strickland Framework

The standard for assessing whether counsel rendered

constitutionally ineffective assistance, which was set forth by

the Supreme Court in Strickland v. Washington, 466 U.S. 668

(1984), is a familiar one. To obtain relief, a criminal

defendant must first demonstrate that counsel's performance was

deficient. The defendant must also demonstrate that counsel's

deficient performance prejudiced the defense. Id. at 687; United

States v. Smith, 915 F.2d 959, 963 (5th Cir. 1990).

The proper standard for measuring counsel's performance

under the first prong of Strickland is reasonably effective

assistance. That is, "the defendant must show that counsel's

representation fell below an objective standard of

reasonableness." Strickland, 466 U.S. at 687-88. Our scrutiny

of counsel's performance must be "highly deferential," and we

must make every effort "to eliminate the distorting effects of

hindsight, to reconstruct the circumstances of counsel's

challenged conduct, and to evaluate the conduct from counsel's

perspective at the time." Id. at 689. Under Strickland, there

is a "strong presumption that counsel's conduct falls within the

wide range of reasonable professional assistance." Id.

To satisfy the prejudice prong of Strickland, the "defendant

must show that there is a reasonable probability that, but for

counsel's unprofessional errors, the result of the proceeding
 

2 We note that this is not the first time this district

court judge has erroneously suggested that a state court's

finding of effective assistance is entitled to deference as a

factual finding under § 2254(d). See, e.g., Black v. Collins,

962 F.2d 394, 401 (5th Cir.) ("Contrary to what the federal

district court appears to have thought, a state court's ultimate

conclusion that counsel rendered effective assistance is not a

fact finding to which a federal court must grant a presumption of

correctness under 28 U.S.C. § 2254(d)."), cert. denied, 112 S.

Ct. 2938 (1992). 

6

would have been different. A reasonable probability is a

probability sufficient to undermine confidence in the outcome." 

Id. at 694. The defendant need not show that "counsel's

deficient conduct more likely than not altered the outcome in the

case." Id. at 693. But it is not enough, under Strickland,

"that the errors had some conceivable effect on the outcome of

the proceeding." Id.

In reviewing ineffective assistance claims raised on habeas

corpus, we do not, contrary to the district court's assertion

otherwise, defer to a state court's conclusion that counsel

rendered constitutionally effective assistance. As Justice

O'Connor has stated:

Ineffectiveness is not a question of "basic, primary,

or historical fac[t]," Townsend v. Sain, 372 U.S. 293,

309 n.6 (1963). Rather, like the question whether

multiple representation in a particular case gave rise

to a conflict of interest, it is a mixed question of

law and fact.

466 U.S. at 698. And, "[a]lthough state court findings of fact

made in the course of deciding an ineffectiveness claim are

subject to the deference requirement of § 2254(d), . . . both the

performance and prejudice components of the ineffectiveness

inquiry are mixed questions of law and fact." Id.2
7

Finally, in deciding ineffectiveness claims, we need not

address both prongs of the Strickland test. If we can "dispose

of an ineffectiveness claim on the ground of lack of sufficient

prejudice . . . that course should be followed." Id. at 697. We

therefore proceed in such a fashion.

B. Assessing Motley's Claim Under the Strickland Framework

The alleged errors to which Motley points are not

sufficient, either alone or in combination, to render his trial

counsel's performance constitutionally ineffective. While

Motley's trial counsel may have been deficient in certain

respects, this deficient performance did not, in our view,

prejudice the outcome of either the guilt/innocence or the

sentencing phase of Motley's trial. We therefore affirm the

district court's decision to the extent that it denied relief on

this ground.

First, Motley complains about his trial counsel's failure to

correct the State's assertion during voir dire that the term

"deliberately," as used in the first Texas special issue, was

substantially equivalent in meaning to the term "intentionally." 

Motley correctly points out that the Texas Court of Criminal

Appeals has refused to equate the two terms. See Motley v.

State, 773 S.W.2d at 289 ("We have decided that `deliberately,'

as used in the first special issue is not the linguistic

equivalent of `intentionally,' as used in the charge on guiltinnocence."); Heckert v. State, 612 S.W.2d 549, 553 (Tex. Crim.

App. 1981) (presuming that Texas legislature did not intend "for
 

3 Under the Texas capital sentencing scheme in existence at

the time of Motley's trial, if jurors became deadlocked on any of

the special issues--i.e., they could not get twelve "yes" votes

or ten "no" votes--the court was required to sentence the

defendant to life imprisonment. See TEX. CODE CRIM. PROC. ANN.

art. 37.071(e) (Vernon Supp. 1990) (subsection (e) amended in

1981).

8

finding of deliberateness to be based upon the same standard as

that of intentional or knowing"). But this observation

establishes, at most, that Motley's trial counsel was deficient. 

Motley has not satisfactorily demonstrated a reasonable

probability that, had his trial counsel corrected any

misapprehension on the part of jurors during voir dire, the

result of the sentencing proceeding would have been different. 

Specifically, he has not shown how a more favorable definition of

"deliberately" would have caused at least one juror3 to return a

negative answer to the first special issue. See Landry v.

Lynaugh, 844 F.2d 1117, 1120 (5th Cir.), cert. denied, 488 U.S.

at 900 (1988).

Motley also argues that his trial counsel, instead of

calling him to the stand, should have rested after the State put

on its case in chief. He contends that, if he had not been

called to testify, and if the State had not impeached him with a

statement in which he admitted killing Duran, there would have

been insufficient evidence upon which to convict him. We

disagree. Motley has not demonstrated a reasonable probability

that, if he had not testified, (1) the jury would not have

convicted him of capital murder, or (2) his conviction would have

been reversed on the basis of insufficient evidence. In short,
 

4 See Williams v. Lynaugh, 484 U.S. 935 (1987) (Marshall,

J., joined by Brennan, J., dissenting from denial of certiorari)

(arguing that practice of admitting unadjudicated extraneous

offenses at capital sentencing proceeding "presents a serious

constitutional issue"); see also Steven Paul Smith, Note,

Unreliable and Prejudicial: The Use of Extraneous Unadjudicated

Offenses in the Penalty Phases of Capital Trials, 93 COL. L. REV.

1249 (1993) (criticizing the practice as injecting unreliability

into the sentencing process).

9

we find that the State introduced ample evidence during its case

in chief to support a guilty verdict. Thus, Motley fails to

satisfy Strickland's prejudice requirement.

Motley has also failed to demonstrate prejudice resulting

from his trial counsel's alleged unfamiliarity with capital

sentencing law. Motley complains specifically that his trial

counsel "did not understand the admissibility of unadjudicated

offenses at the punishment stage of a capital murder trial." Yet

he concedes that the Texas Court of Criminal Appeals has "long

held" that unadjudicated offenses are admissible at the

punishment phase of a capital murder trial. See Kinnamon v.

State, 791 S.W.2d 84, 93 (Tex. Crim. App. 1990) (citing numerous

cases). Although the Supreme Court has not considered the

question,4 we have also sanctioned the practice of admitting

unadjudicated offenses during the punishment phase of trial. See

Landry v. Lynaugh, 844 F.2d at 1121 (rejecting, albeit with

reservations, a due process challenge to the practice); Williams

v. Lynaugh, 814 F.2d 205, 208 (5th Cir.) (rejecting an equal

protection challenge to practice), cert. denied, 484 U.S. 935

(1987). Motley has thus not alleged how his trial counsel's

unfamiliarity with the law on unadjudicated extraneous offenses
10

resulted in the admission of any evidence that should have, or

would have, been excluded.

Finally, Motley complains about his trial counsel's failure

to develop mitigating evidence concerning his organic brain

damage. Had Motley's trial counsel not pursued a strategy of

introducing evidence of Motley's child abuse, we might well agree

that the failure to introduce evidence of his brain damage would

have been a reasonable strategic decision; after all, such

evidence may have been "double-edged"--in that it may have

militated in favor of a "yes" answer to the future dangerousness

special issue. Given the strategic choice of Motley's trial

counsel to present evidence of physical and sexual abuse, see

Motley v. State, 773 S.W.2d at 290, however, it may have been

unreasonable for him to ignore evidence of neurological damage

and other evidence that would have been in the same vein as the

evidence actually introduced at the punishment phase.

In any event, Motley has not satisfied the prejudice prong

of Strickland. Much of the non-record Penry evidence merely

corroborated the substantial trial testimony that Motley was

abused as a child, and thus would have been cumulative of the

evidence actually introduced. More important, the evidence of

organic brain damage was relatively weak: a doctor who examined

Motley as a child concluded that he had "neurological soft signs"

and diagnosed him as having "neurological organic involvement." 

In short, we find no reasonable probability that this additional

mitigating evidence would have tipped the scales in favor of a
11

life sentence. See Duhamel v. Collins, 955 F.2d 962, 966 (5th

Cir. 1992).

III. PENRY CLAIM

Motley also raised a Penry claim in district court. He

argued that the Eighth Amendment requires that whenever a

defendant in a capital case proffers mitigating evidence that has

some arguable relevance beyond the Texas special issues, the

defendant is entitled, in effect, to an additional "special

issue" asking whether any mitigating evidence so proffered,

whether or not relevant to the existing special issues, leads the

jury to believe that the death penalty should not be imposed. 

Because Motley was not given an additional "special issue" posing

that inquiry or an instruction that did service for such an

issue, he claimed that he was entitled to habeas relief. The

district court summarily rejected Motley's Penry claim. It

concluded that, because Motley failed to object to the special

issues on Penry grounds, he procedurally defaulted his claim. 

The district court alternatively reached the merits of Motley's

Penry claim, but only to hold that it was frivolous:

Motley's argument is simple and wrong. [He argues

that] [h]is circumstances were pitiful as a child;

therefore, he is not responsible for his acts. Freedom

necessarily implies responsibility; Motley abused his

freedom. He must bear the consequences the state of

Texas has prescribed for this particular abuse, after

he has been afforded every protection the procedures of

a humane, reasonable people can offer.

Child abuse is tragic for anyone, but its ability

to break the causal connection between the free will of

the defendant and the fate of his victim has never been

suggested. If a defendant could argue that this
12

experience as a youthful victim of abuse led him to

react excessively to his perception of a threat, he

could lend some support to an otherwise implausible

assertion of self defense. These sorts of

considerations were not present in this case.

Motley argues that his experience as a victim of

abuse in part justified his murdering an innocent

passer-by . . . ; this is not a constitutional issue. 

Motley's position is an insult to people everywhere who

have overcome their injuries and deprivations to become

successful contributing members of our community. 

Also, murders are committed by people who were not

abused, contradicting the causal inference Motley wants

the court to make.

Our assessment of Motley's Penry claim proceeds in parts. 

We necessarily begin by addressing whether Motley had properly

preserved his Penry claim for habeas review. We then discuss

whether Motley is entitled to federal habeas relief on his Penry

claim. 

A. Was Motley's Penry Claim Properly Preserved?

We note initially that a Penry claim can be considered on

collateral review only if the petitioner actually proffered the

mitigating evidence he contends was beyond the reach of jurors at

his capital trial. See Barnard v. Collins, 958 F.2d 634, 637

(5th Cir. 1992), cert. denied, 113 S. Ct. 990 (1993); May v.

Collins, 904 F.2d 228, 232 (5th Cir. 1990), cert. denied, 111 S.

Ct. 770 (1991); DeLuna v. Lynaugh, 890 F.2d 720, 722 (5th Cir.

1989); Ex Parte Goodman, 816 S.W.2d 383, 386 n.6 (Tex. Crim. App.

1991). However, at least in a case such as this, which was tried

before Penry was decided, the petitioner need not have requested

an instruction on mitigating evidence, nor must he have objected

to the lack of such an instruction. See Selvage v. Collins, 816
13

S.W.2d 390, 392 (Tex. Crim. App. 1991) (on certified question

from the Fifth Circuit Court of Appeals).

At the punishment phase of trial, Motley testified that his

father began physically abusing him when he was about four or

five years old. Motley recounted one instance when his father

beat him until he was "bloody, all over." On this occasion,

Motley recalled, his father "had to put me in a tub of ice to

stop the bleeding." Motley also stated that his father used his

head as a battering ram and, on more than one occasion, slammed

his head between doors. Other instruments of abuse included: 

"belt buckles in the face" and a boxed-in wrench, which his

father used to hit Motley "everywhere he could hit."

According to Motley, the abuse by his father did not stop at

beatings; it also included sexual and psychological abuse. 

Indeed, Motley testified that his father had anal and oral sex

with him until he was about thirteen. Although Motley could not

recall the number of times his father sexually abused him, he

stated that the sexual abuse stopped after his mother threatened

to divorce his father. Motley also recounted an incident in

which he was punished for not cleaning out his gerbil cage. He

stated that his father took his gerbils out and "squashed them"

to death in front of him.

Nor was Motley's father the only abuser. His mother often

failed to protect him and, on at least one occasion, physically

assaulted him herself. Motley specifically recalled an instance

where his mother came up behind him with a pool stick and
14

"whacked" him in the back of the head. When he turned around,

Motley further recalled, he "got whacked in the mouth." At the

punishment phase of trial, Motley pointed to the F-shaped scar on

his face which, he contended, was the result of being hit with a

pool stick.

Motley's stories of abuse were corroborated by his

neighbors, the Howells, who had known Motley since he was three. 

Margaret Howell recalled that, when Motley was about eight, he

spent the night out on a busy highway; she knew this because her

son picked Motley up the next morning and brought him to her

home. She also remembered Motley being locked out of his home

"on one of the bitterest [winter] nights." On one winter day,

she continued, she saw Motley being hosed down with cold water by

his father in the yard. She further testified that, on numerous

occasions, Motley came to her house bruised and bleeding, and

that she gave him food and shelter. Mrs. Howell concluded, "He

has had a hell of a life." Mrs. Howell's husband, Douglas, also

recalled seeing evidence that Motley was being abused. He stated

that, although he never actually witnessed any abuse, on several

occasions he noticed blood or bruises on Motley's face and skull. 

He further remembered seeing bars and padlocks on Motley's

bedroom window.

Finally, the defense called Dr. Fred Fason, a psychiatrist

with extensive experience in treating child abuse victims, who

testified about the likely effects of such abuse. He stated

that, in his experience, victims of child abuse, "even at the age
15

of eight or ten or twelve, were the kids that were most prone to

pick a fight or beat up a younger child, or throw rocks at other

kids and engage in behavior that we considered to be anti-social

behavior, particularly in relationships to smaller children." He

further explained the phenomenon of a child abuse victim's

"identification with the aggressor":

The reason so many parents abuse the children who were

abused is what psychoanalysts call identification with

the aggressor. In their head, there is the play of the

scene of the powerful person who is out to harm the

smaller person. It is much better for them to be that

powerful person, doing the harm, than the smaller

person who is being terrorized. So, this is kind of

what, in answer to your question, the effect on the

child who is abused as a child, is to terrorize and at

the same time to give him the feeling that no one

really cares. And . . . that combination leads him

then to identify with the powerful figure, the way he

conceptualizes the abusing parent, and then acts that

out with other people in his life. This is why abused

children so frequently get into difficulties with the

law or difficulties with their own children, when they

become parents.

When sexual abuse is combined with physical abuse, Dr. Fason

continued, it becomes "particularly difficult" for the child to

cope: "[Y]ou have total separation of sexual feelings from soft

and tender feelings to where [the child] becomes incapable of

loving in a normal way."

Our review of the record thus reveals substantial evidence

that Motley was abused as a child. Indeed, the Texas Court of

Criminal Appeals noted that "[a]ll of the evidence . . .

presented at the punishment stage of the trial went to the

proposition that [Motley] had been abused both physically and

sexually as a child and as a result of that abuse, he acted out." 
16

Motley v. State, 773 S.W.2d at 290. Motley therefore properly

preserved his Penry claim for collateral review. The district

court erred in holding that Motley, by failing to object to the

charge or request an additional instruction, procedurally

defaulted his Penry claim.

B. Is Motley Entitled to Federal Habeas Relief?

Because Motley raises his Penry claim in a petition for a

writ of federal habeas corpus, "'we must determine, as a

threshold matter, whether granting him the relief he seeks would

create a "new rule" of constitutional law'" under Teague v. Lane,

489 U.S. 288 (1989) (per curiam), and its progeny. Graham v.

Collins, 113 S. Ct. 892, 897 (1993) (quoting Penry, 492 U.S. at

313). Under Teague, a "new rule" is one which "'imposes a new

obligation on the States or the Federal Government'" or was not

"'dictated by precedent existing at the time the defendant's

conviction became final.'" Id. (quoting Teague, 489 U.S. at

301). As the Supreme Court aptly noted, it is extremely

difficult "'to determine whether we announce a new rule when a

decision extends the reasoning of . . . prior cases.'" Id.

(quoting Saffle v. Parks, 494 U.S. 484, 488 (1990)). 

Nonetheless, we are instructed that "unless reasonable jurists

hearing [Motley's] claim at the time his conviction became final

'would have felt compelled by existing precedent' to rule in his

favor, we are barred from doing so now." Id. (quoting Saffle,

494 U.S. at 488) (emphasis added). 
17

Because Motley did not petition the Supreme Court for writ

of certiorari, Motley's conviction and sentence became final

ninety days after the Texas Court of Criminal Appeals denied a

rehearing on its decision to affirm Motley's conviction and

sentence on direct appeal--about two months after the Supreme

Court decided Penry. We must thus ascertain the scope of Penry

to determine whether the ruling Motley now seeks fits within

Penry's ambit or instead would create a "new rule" of

constitutional law under Teague.

1. The Supreme Court's Decision in Penry

In Penry v. Lynaugh, the Supreme Court reaffirmed the Eighth

Amendment principle that "punishment should be directly related

to the personal culpability of the criminal defendant." 492 U.S.

at 319. This culpability principle, which was first articulated

by a plurality of the Court in Lockett v. Ohio, 438 U.S. 586

(1978), and later embraced by a majority in Eddings v. Oklahoma,

455 U.S. 104 (1982), places special constraints on states in

meting out the death penalty. Under the Lockett-Eddings "rule,"

a state cannot, consistent with the Eighth and Fourteenth

Amendments, preclude the sentencer from considering as a

mitigating factor evidence relevant to the defendant's background

or character "that the defendant proffers as a basis for a

sentence less than death." Penry, 492 U.S. at 317.

The evidence Penry had proffered was that of his mental

retardation and child abuse which left him unable to learn from

his mistakes. Id. at 308. The Penry Court concluded that absent
18

instructions informing the jury that it could consider and give

effect to Penry's evidence, the Texas special issues did not

provide the jury with a vehicle for "expressing its 'reasoned

moral response' to [Penry's] evidence in rendering its sentencing

decision." Id. at 328. Before reaching this conclusion,

however, the Court had to determine whether the rule Penry sought

in his federal habeas petition was a "new rule" under Teague. 

Id. at 313. The Court found that Penry was simply asking that in

his particular case, the jury should have, upon request, "been

given jury instructions that ma[d]e it possible for them to give

effect to [his] mitigating evidence in determining whether the

death penalty should be imposed." Id. at 319. Accordingly, the

Court determined that the relief Penry sought was "dictated" by

the Court's previous decisions in Lockett and Eddings and was

thus not a "new rule" under Teague.

Moreover, the Court determined that the relief Penry sought

did not impose a "new obligation" on the State of Texas. Id. 

The Court made this determination by first pointing out that the

facial validity of the Texas death penalty statute under which

Penry had been sentenced had been upheld in Jurek v. Texas, 428

262 (1976). Id. at 318. After explaining that the statute's

validity had been upheld "on the basis of assurances that the

special issues would be interpreted broadly enough to enable

sentencing juries to consider all of the relevant mitigating

evidence a defendant might present," the Court characterized

Penry's request for relief as being premised on the fact that
19

"those assurances had not been fulfilled in [Penry's] particular

case." Id.

In addressing the merits of Penry's claim, the Court

initially focused on the first special issue, which asked whether

the defendant killed "deliberately and with the reasonable

expectation that the death of the deceased . . . would result."

The Court reasoned:

In the absence of jury instructions defining

"deliberately" in a way that would clearly direct the

jury to consider fully Penry's mitigating evidence as

it bears on his personal culpability, we cannot be sure

that the jury was able to give effect to the mitigating

evidence of Penry's mental retardation and history of

abuse in answering the first special issue. Without

such a special instruction, a juror who believed that

Penry's retardation and background diminished his moral

culpability and made imposition of the death penalty

unwarranted would be unable to give effect to that

conclusion if the juror also believed that Penry

committed the crime "deliberately." Thus, we cannot be

sure that the jury's answer to the first special issue

reflected a "reasoned moral response" to Penry's

mitigating evidence.

Id. at 323.

The Court similarly held that Penry's evidence of mental

retardation and child abuse was relevant beyond the scope of the

second special issue, which asks "whether there is a probability

that the defendant would commit criminal acts of violence that

would constitute a continuing threat to society." The Court

specifically focused on the fact that Penry's mitigating evidence

of mental retardation and child abuse showed "his inability to

learn from his mistakes." Id. at 323 (emphasis added). The

Court thus determined that although the mitigating evidence

offered by Penry was relevant to the second special issue, it was
 

5 The Court noted that the evidence presented at trial

suggested that Penry "did not stab the victim after she wounded

him superficially with a [pair of] scissors during a struggle,

but rather killed her after her struggle had ended and she was

lying helpless." Penry, 492 U.S. at 324. And, it concluded that

"a juror who believed Penry lacked the moral culpability to be

sentenced to death could not express that view in answering the

third special issue if she also concluded that Penry's action was

not a reasonable response to provocation." Id. at 324-25.

 

6 Motley argues, as did Penry, that the three Texas special

issues did not provide an adequate vehicle to give effect to his

mitigating evidence. No one seriously contends, however, that

the jury had an adequate vehicle for giving effect to the

evidence of Motley's child abuse under the first special issue,

which asks whether the defendant committed the crime

deliberately. Such a contention would be without merit. As in

Penry, the term "deliberately" was not defined for the jury. See

492 U.S. at 322. Moreover, the State argued, during both voir

dire and closing argument, that the term "deliberately" meant

essentially the same thing as "intentionally." Thus, like the

Supreme Court in Penry, "we cannot be sure that the jury was able

to give effect to the mitigating evidence of [Motley's] . . .

history of abuse in answering the first special issue." Id. at

323. In short, we agree with Judge Reaveley's observations that

evidence of child abuse does not "logically" come into play in

considering the deliberateness question. See Penry v. Lynaugh,

20

relevant only as an aggravating factor "because it suggests a

'yes' answer to the question of future dangerousness." Id.

Finally, the Court held that the third special issue, which

asks "whether the conduct of the defendant in killing the

deceased was unreasonable in response to the provocation, if any,

by the deceased," was an insufficient vehicle for giving

mitigating effect to Penry's evidence of mental retardation and

child abuse.5 The Court therefore decided that in Penry's

particular case, the jury should have been instructed "that it

could consider and give effect to the mitigating evidence of

Penry's mental retardation and abused background by declining to

impose the death penalty . . . ."6
832 F.2d 915, 925 (5th Cir. 1987), aff'd in part, rev'd in part,

492 U.S. 302 (1989).

Nor does anyone contend that the third special issue, which

asks whether the defendant's conduct was unreasonable in response

to any provocation by the deceased, could have allowed the jury

to give effect to Motley's evidence of child abuse. In fact, the

third special issue was not even submitted to the jury in this

case because the evidence demonstrated that the victim, Maria

Duran, had been shot in the back from approximately thirty feet

away. The third special issue provided absolutely no vehicle for

consideration of Motley's evidence of child abuse. See Penry,

492 U.S. at 324. Our discussion thus focuses solely on whether

the second special issue, the "future dangerousness" issue,

provided an adequate vehicle for the jury to give effect to

Motley's evidence of child abuse. 

 

7 See generally Peggy M. Tobolowsky, What Hath Penry

Wrought?: Mitigating Circumstances and the Texas Death Penalty,

19 AMER. J. CRIM. LAW 345 (1992). 

21

2. The Scope of Penry as Explained in Graham and Johnson

The Supreme Court has interpreted Penry narrowly.7 The

Court's decisions in Graham v. Collins, 113 S. Ct. 892 (1993),

and Johnson v. Texas, 113 S. Ct. 2658 (1993), explain the

specific parameters of the Lockett-Eddings-Penry "rule," and it

is to those decisions which we now turn to determine whether the

federal habeas relief Motley seeks falls within the scope of that

"rule."

a. Graham v. Collins

The "rule" the petitioner sought in Graham on federal habeas

review was that the Texas special issues did not permit the jury

to give adequate mitigating effect to the evidence he had

proffered. 113 S. Ct. at 897. Thus, Graham argued that absent

additional instruction, the Texas special issues did not provide

the jury a vehicle by which it could give effect to his evidence
22

of youth, an unstable childhood, and positive character traits. 

Id. 

Because Graham had petitioned for federal habeas relief,

however, the Court first determined whether granting Graham the

relief he sought would create a "new rule" of constitutional law

under Teague. Id. at 897. Although Graham's conviction had

become final in 1984, before Penry had been decided, the Court

concluded that even with the benefit of the Penry decision,

reasonable jurists would not have been "of one mind" in ruling on

Graham's claim and that Graham thus sought a "new rule" under

Teague.

The Court reached its determination by first making it clear

that it did not read Penry "as effecting a sea change" in its

view of the Texas death penalty statute under which Graham was

sentenced because Penry "did not broadly suggest the invalidity

of the special issues framework." Id. at 901. The Court then

went on to assert that the rule which Graham sought was not

commanded by the cases upon which Penry rested, i.e., Lockett and

Eddings. Id. at 902. As the Court explained, in Penry--as in

Lockett and Eddings--"the sentencer had no reliable means of

giving mitigating effect" to the proffered evidence. Id.

(emphasis added). The Court then distinguished Graham's case

from the Lockett-Eddings-Penry line by stating that 

Graham's evidence--unlike Penry's--had mitigating relevance

to the second special issue concerning his likely future

dangerousness. Whereas Penry's evidence compelled an

affirmative answer to that inquiry, despite its mitigating

significance, Graham's evidence quite readily could have

supported a negative answer.
 

8 Moreover, the Court was not convinced that Penry could be

extended "to cover the sorts of mitigating evidence Graham

suggests without a wholesale abandonment of Jurek . . . ." 

Graham, 113 S. Ct. at 902. As the Court explained,

Graham's evidence of transient upbringing and otherwise

nonviolent character more closely resembles Jurek's evidence

of age, employment history, and familial ties than it does

Penry's evidence of mental retardation and harsh physical

abuse.

Id.

23

Id. The Court delineated the distinction between Penry's

particular case and Graham's by explaining that the jury would

not have necessarily answered "yes" to the second special issue

in Graham's case because that issue provided the jury a vehicle

by which it could "accept the suggestion of Graham's lawyers that

his brief spasm of criminal activity . . . was properly viewed,

in light of his youth, his background, and his character, as an

aberration that was not likely to be repeated." This distinction

led the Court to conclude that the Lockett-Eddings-Penry "rule"

did not dictate the relief Graham sought.8 Id. Focusing on the

determinative question under Teague, i.e., "whether reasonable

jurists reading the case law that existed at the time Graham's

conviction became final could have concluded that Graham's

sentencing was not constitutionally infirm," the Court held:

We cannot say that all reasonable jurists would have deemed

themselves compelled to accept Graham's claim in 1984. Nor

can we say, even with the benefit of the Court's subsequent

decision in Penry, that reasonable jurists would be of one

mind in ruling on Graham's claim today. The ruling Graham

seeks, therefore, would be a "new rule" under Teague. 

Id. at 903.
24

b. Johnson v. Texas

As had the petitioner in Graham, Johnson argued that the

Texas special issues, absent additional instruction, did not

permit the jury to give adequate mitigating effect to the

evidence he had proffered, i.e., evidence of his youth. Johnson,

113 S. Ct. at 2669. Although Johnson was before the Supreme

Court on direct appeal, we find that the Court's analysis of

Johnson's claim speaks directly not only to the scope of Penry

but also to how the "rule" Johnson requested would be viewed

under Teague. This analysis is thus invaluable to our

determination of whether granting Motley the federal habeas

relief he requests would necessitate the creation of a "new rule"

of constitutional law.

In analyzing Johnson's claim, the Court made it clear that

it was being "asked to take the step that would have been a new

rule had [the Court] taken it in Graham." Id. at 2668. The

Court then went on to explain that like Graham, Johnson set forth

a claim for relief which fell outside the scope of Penry. Id. at

2669-72. 

In reaching this conclusion, the Court concentrated on the

fact that Penry's mental retardation and history of abuse,

evidenced at trial and sentencing, "prevented him from learning

from experience." Id. (emphasis added). The Court explained

that although Penry "remained the law and must be given a fair

reading," evidence of Johnson's youth fell outside Penry's ambit

because Penry's condition was unequivocally never subject to
25

change and Johnson's youthful state was. See id. at 2670. As

the Court stated,

Unlike Penry's mental retardation, which rendered him unable

to learn from his mistakes, the ill effects of youth that a

defendant may experience are subject to change and, as a

result, are readily comprehended as a mitigating factor in

consideration of the second special issue.

Id. (emphasis added).

What was important to the Johnson Court, then, was that

because Penry was unable to learn from his mistakes due to his

"condition," evidence of this "condition" could be given only

aggravating effect: in determining under the second special

issue whether Penry was a "continuing threat to society," the

jury--without additional instruction--would necessarily have to

answer "yes" because Penry's condition was not subject to change,

and thus the jury could only regard him as a "continuing threat." 

On the other hand, Johnson's "condition"--his being youthful--was

necessarily subject to change, and the Court thus distinguished

Johnson's case from Penry's.

In so doing, the Court indicated that a "fair reading" of

Penry, as it remains the law, was that the Texas special issues

place a defendant's mitigating evidence beyond jurors' effective

reach when that evidence can be given only aggravating effect. 

That is, as long as a defendant's evidence can be given

mitigating effect in some way under the Texas special issues, no

additional instruction would be constitutionally required. See

id. at 2671. As the Court explained, the "rule of Lockett and

Eddings,"--which "dictated" the result in Penry--was that "a jury
 

9 Out en banc decision in Graham aligns itself with this

view. We recognized in Graham that "Penry represents . . . a set

of atypical circumstances," i.e., circumstances in which the

defendant's mitigating evidence indicated both the absence of

potential for rehabilitation and a permanent condition. Graham

v. Collins, 950 F.2d 1009, 1029 (5th Cir. 1992) (en banc)

(emphasis added), aff'd on other grounds, 113 S. Ct. 892 (1993). 

We also found Penry to be unique because there was no way

evidence of Penry's condition "could be given any mitigating

force under the second special issue." Id. (emphasis added).

26

be able to consider in some manner all of a defendant's relevant

mitigating evidence," not that "a jury be able to give effect to

mitigating evidence in every conceivable manner in which the

evidence might be relevant."9 Id. (emphasis added).

The Court in Johnson also focused on mitigating evidence

(such as Motley's evidence of child abuse) that could be viewed

by some jurors as aggravating. The Court held that,

[a]s we recognized in Graham, the fact that a juror might

view the evidence of youth as aggravating, as opposed to

mitigating, does not mean that the rule of Lockett is

violated. As long as the mitigating evidence is within "the

effective reach of the sentencer," the requirements of the

Eighth Amendment are satisfied.

Id. at 2669 (citations omitted). 

3. Application to Motley's Claim

To grant the relief Motley now requests would be to hold

that the Eighth Amendment requires that whenever a defendant in a

capital case proffers mitigating evidence that has some arguable

relevance beyond the Texas special issues, the defendant is

entitled, in effect, to an additional "special issue" asking

whether any mitigating evidence so proffered, whether or not

relevant to the existing special issues, leads the jury to

believe that the death penalty should not be imposed. As our
27

analysis of Graham and Johnson makes clear, that is precisely the

"rule" that Graham and Johnson held, with the benefit of Penry,

to be a "new rule" of constitutional law under Teague. 

Motley's evidence of child abuse was not of a necessarily

transient condition as was Johnson's evidence of youth. 

Nonetheless, it was evidence of a transient condition to some

degree--and therefore more akin to Graham's evidence than to

Penry's. Dr. Fason, who testified about Motley's "condition,"

stated that Motley would continue to engage in anti-social

behavior as a result of his abuse as a child "unless there are

certain changes that take place," including somehow instilling in

Motley "the feeling that someone cares" (emphasis added). Dr.

Fason also testified that the bitterness and hatred engendered in

a child abuse victim such as Motley would frequently continue so

as to lead Motley to perhaps senselessly assault other people. 

Although he would not specifically comment on the probability of

Motley's being successfully treated, he stated that Motley had a

possibility of successful treatment. 

Motley's evidence of child abuse--unlike Penry's evidence of

mental retardation and child abuse--thus indicated that Motley

was subject to change and that Motley was not unable to learn

from his mistakes. Even if Motley's evidence, like Penry's, had

significance beyond the scope of the first special issue, it is

apparent that Motley's evidence--"unlike Penry's--had mitigating

relevance to the second special issue concerning his likely

future dangerousness." See Graham, 113 S. Ct. at 902. Motley's
 

10 We note that on appeal, the State contends that Motley's

Penry claim lacks merit because he has not demonstrated that his

criminal behavior was attributable to the abuse he suffered as a

child. The State has correctly pointed out that our cases

establish that evidence of a petitioner's background or record,

in order to be constitutionally mitigating, "must be able to

raise an inference 'that the crime is attributable to the

disability.'" See Barnard v. Collins, 958 F.2d 634, 638 (5th

Cir. 1992) (quoting Graham v. Collins, 950 F.2d 1009, 1033 (5th

Cir. 1992) (en banc), aff'd on other grounds, 113 S. Ct. 892

(1993), cert. denied, 113 S. Ct. 990 (1993)). Nonetheless, for

purposes of discussing the Teague issue which Motley's Penry

claim raises, we have assumed--without deciding--that Motley's

evidence of child abuse was constitutionally mitigating. 

28

jury, then, would not have necessarily given only aggravating

effect to Motley's evidence under Texas' sentencing scheme

without additional instruction. Because the jury was able to

consider in some manner Motley's relevant mitigating evidence of

child abuse under Texas' sentencing scheme, which is what the

Lockett-Eddings-Penry "rule" mandates, see Johnson, 113 S. Ct. at

2671, the relief Motley now requests is not "dictated" by that

rule but instead falls outside of its scope. 

We therefore cannot say that reasonable jurists hearing

Motley's claim at the time his conviction became final would have

felt compelled by existing precedent to rule in his favor. To

grant Motley the federal habeas relief he now requests would thus

be to create a "new rule" of constitutional law.10 Further,

although Teague itself recognized two exceptions to the general

bar on issuing "new rules" of constitutional law on collateral

review, see Teague, 489 U.S. at 311, we find both of those

exceptions inapplicable in Motley's case.
29

4. Motley's Reliance on Mayo v. Lynaugh

Motley also argues that the relief he now requests is

dictated by this court's decision in Mayo v. Lynaugh, 893 F.2d

683 (5th Cir. 1990), cert. denied, 112 S. Ct. 272 (1991). 

However, we find Motley's reliance on Mayo unavailing.

In Mayo, a panel of this court originally upheld the

district court's denial of federal habeas relief on Randy Dale

Mayo's claim that his jury lacked a vehicle by which to give

effect to the mitigating evidence Mayo had submitted during the

sentencing phase of his trial. 888 F.2d 134, 140 (5th Cir.

1989). In an opinion released four days after the Supreme

Court's decision in Penry, the panel stated:

We are bound by the precedents of this circuit that have

upheld the constitutionality of the Texas [sentencing]

statute, and therefore we must deny relief on this claim. 

That the Supreme Court has granted certiorari in a

particular case does not allow us to grant relief to other

petitioners who raise a similar claim.

Id. at 140-41 (citations omitted).

Both parties petitioned for rehearing: Mayo, on the basis

of the Supreme Court's decision in Penry, and the State, on that

same basis and on grounds that Mayo had procedurally defaulted

his claim. We denied the petition for rehearing on grounds that

Mayo had procedurally defaulted his claim under Texas law and

that Mayo had not sufficiently articulated "how the jury was

unable to express its reasoned moral response and give effect to

his mitigating evidence." 883 F.2d 358, 359-60 (5th Cir.), cert.

denied, 109 S. Ct. 1576 (1989).
30

Mayo then filed a second petition for rehearing, in which he

argued for the first time that his Penry claim was not

procedurally barred because the State had waived the defense and

that his Penry claim was entitled to relief on the merits. The

State argued that it was excused from failing to raise the

procedural-bar issue in state court under Teague. We granted

Mayo's petition for rehearing, and it is our disposition of the

merits of Mayo's Penry claim on rehearing that forms the basis of

Motley's argument in the instant case.

Mayo had proffered evidence of child abuse at his sentencing

trial. In particular, Patsy Mayo, Randy Mayo's mother, testified

that "her husband began beating Randy when Randy was four or five

years old, that Randy had suffered several unexplained broken

bones, that [her husband] had made numerous death threats to her

and her children, that [her husband's] physical and verbal abuse

of Randy was continuous, and that at the time of the sentencing

phase, [her husband] was in prison for having raped a child." 

Mayo, 893 F.2d at 688. Raymond Allison, a friend of the family

who had employed both Randy and his father, testified that

Randy's subsequent criminal acts were probably the result of his

home environment. Id.

This court decided that as in Penry, "the mitigating

evidence presented was not accompanied by jury instructions that

would have allowed a juror to give effect to her conclusion that

Mayo was less morally culpable or otherwise undeserving of death

because of his family background or personal circumstances." Id.
 

11 Although Teague had been decided a month before Mayo

filed his original appellate brief and the State, in its petition

for rehearing, raised the argument that Mayo's Penry claim was

procedurally barred under Teague, the State did not raise the

Teague retroactivity issue, and we did not consider it sua

sponte. See Wiley v. Puckett, 969 F.2d 86, 96 n.13 (5th Cir.

1992) (explaining that this court may consider the Teague

retroactivity issue sua sponte); Smith v. Black, 904 F.2d 950,

981 n.12 (5th Cir. 1990) (same), vacated and remanded on other

grounds, 112 S. Ct. 1463 (1992); see also Caspari v. Bohlen, 62

U.S.L.W. 4113, 4115 (U.S. Feb. 23, 1994) ("a federal court may,

31

We thus determined that Mayo's evidence of his history of abuse,

abuse which created problems in Mayo that "would stay there for a

long time" unless something was done about them, was such that

the Texas special issues, in particular the "future

dangerousness" issue, did "not afford sufficient opportunity for

consideration of the mitigating evidence Mayo offered." Id.

Hence, we concluded that Mayo had presented sufficient

constitutionally mitigating evidence to warrant additional jury

instruction, and we reversed the district court's denial of

federal habeas relief. Id. at 689-90.

Motley argues that because his evidence is similar to that

which Mayo proffered, the result reached in Mayo compels the same

result in the instant case. Although Motley's argument appears

at first blush to be a strong one, Motley's reliance on Mayo is

for two reasons unavailing. The first reason relates to the

status under Teague of the rule Mayo requested and obtained. The

second relates to the status of Mayo in the light of Graham and

Johnson.

Our opinion in Mayo did not address the status under Teague

of the rule that Mayo requested, nor were we compelled to.11
but need not, decline to apply Teague if the State does not argue

it"); cf. Schiro v. Farley, 114 S. Ct. 783, 788-89 (1994)

(discussing that the Court undoubtedly has the discretion to

reach the State's Teague argument not raised in the lower courts

or in its brief in opposition to the petition for writ of

certiorari); Collins v. Youngblood, 497 U.S. 37, 40-41 (1990)

(explaining that the Teague bar to the retroactive application of

new rules is not jurisdictional).

32

Hence, there is no ruling, express or implied, in Mayo on whether

the rule requested by Mayo was a new rule under Teague. Not

surprisingly, the "rule" which Mayo requested on federal habeas

review was the same as that requested in Graham and Johnson, and

the same as that now being requested by Motley: the Texas

special issues were constitutionally infirm because, absent an

additional "special issue" or instruction, they did not permit

the jury to give adequate mitigating effect to the petitioner's

proffered evidence. Although we granted Mayo's request by

determining that under Penry the special issues did not provide

the jury with a vehicle by which it could give mitigating effect

to Mayo's evidence of child abuse, the "rule" created by our

decision in Mayo was a "new rule" of constitutional law. The

Court's decisions in Graham and Johnson make it clear that

"reasonable jurists" reading the case law that existed at the

time Mayo's conviction became final in 1986--case law including

Lockett and Eddings, which "dictated" Penry--could have disagreed

with the panel's conclusion in Mayo. Because Motley's conviction

became final before the panel's decision in Mayo was announced,

under Teague's retroactivity bar Motley cannot benefit from
33

Mayo's "new rule." Motley's reliance on Mayo is thus unavailing

for purposes of our Teague inquiry.

Finally, we are compelled to agree with the State that

Johnson has effectively overruled Mayo. We see no basis for

distinguishing between Mayo's evidence of child abuse and

Johnson's evidence of youth. Unlike Penry's evidence of mental

retardation, which rendered him unable to learn from his

mistakes, the ill effects of Mayo's child abuse (like the ill

effects of Johnson's youth) are subject to change and, "as a

result, are readily comprehended as a mitigating factor in

consideration of the second special issue." Johnson, 113 S. Ct.

at 2670. 

IV. CONCLUSION

The district court correctly rejected Motley's ineffective

assistance of counsel claim. Further, although Motley properly

preserved his Penry claim for federal habeas review, we conclude

that the relief he seeks would necessitate the creation of a "new

rule" of constitutional law--which is impermissible under Teague. 

We therefore AFFIRM the district court's decision denying

Motley's petition for federal habeas corpus relief.