(Slip Opinion) OCTOBER TERM, 2006 1 

Syllabus 

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader. 

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. 

SUPREME COURT OF THE UNITED STATES 

Syllabus 

ABDUL-KABIR FKA COLE v. QUARTERMAN, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, 

CORRECTIONAL INSTITUTIONS DIVISION

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR 

THE FIFTH CIRCUIT 

No. 05–11284. Argued January 17, 2007—Decided April 25, 2007 

Petitioner Abdul-Kabir (fka Cole) was convicted of capital murder. At 

sentencing, the trial judge asked the jury to answer two special issues, affirmative answers to which would require the judge to impose

a death sentence: whether Cole’s conduct was committed deliberately

and with the reasonable expectation it would result in his victim’s

death and whether it was probable he would commit future violent 

acts constituting a continuing threat to society. Cole’s mitigating 

evidence included family members’ testimony describing his unhappy

childhood as well as expert testimony which, to some extent, contradicted the State’s claim he was dangerous, but primarily sought to

reduce his moral culpability by explaining his violent propensities as 

attributable to neurological damage and childhood neglect and abandonment. However, the prosecutor discouraged jurors from taking

these latter considerations into account, advising them instead to answer the special issues based only on the facts and to disregard any 

other views as to what might constitute an appropriate punishment

for this particular defendant. After the trial judge’s refusal to give

Cole’s requested instructions, which would have authorized a negative answer to either of the special issues on the basis of any evidence

the jury perceived as mitigating, the jury answered both issues in the

affirmative, and Cole was sentenced to death. The Texas Court of 

Criminal Appeals (CCA) affirmed on direct appeal, and Cole applied

for habeas relief in the trial court, which ultimately recommended 

denial of the application. Adopting the trial court’s findings of fact

and conclusions of law with respect to all of Cole’s claims, including 

his argument that the special issues precluded the jury from properly 
2 ABDUL-KABIR v. QUARTERMAN 

Syllabus 

considering and giving effect to his mitigating evidence, the CCA denied Cole collateral relief. 

Cole then filed a federal habeas petition, asserting principally that

the sentencing jury was unable to consider and give effect to his mitigating evidence in violation of the Constitution. Recognizing that 

Penry v. Lynaugh, 492 U. S. 302 (Penry I), required that juries be

given instructions allowing them to give effect to a defendant’s mitigating evidence and to express their reasoned moral response to that 

evidence in determining whether to recommend death, the District

Court nevertheless relied on the Fifth Circuit’s analysis for evaluating Penry claims, requiring a defendant to show a nexus between his

uniquely severe permanent condition and the criminal act attributed

to that condition. Ultimately, Cole’s inability to do so doomed his 

Penry claim. After the Fifth Circuit denied Cole’s application for a 

certificate of appealability (COA), this Court held that the Circuit’s 

test for determining the constitutional relevance of mitigating evidence had “no foundation in the decisions of this Court,” Tennard v. 

Dretke, 542 U. S. 274, 284, and therefore vacated the COA denial. On 

remand, the Fifth Circuit focused primarily on Cole’s expert testimony rather than that of his family, concluding that the special issues allowed the jury to give full consideration and full effect to his 

mitigating evidence, and affirming the denial of federal habeas relief. 

Held: Because there is a reasonable likelihood that the state trial 

court’s instructions prevented jurors from giving meaningful consideration to constitutionally relevant mitigating evidence, the CCA’s

merits adjudication “resulted in a decision that was contrary to, or 

involved an unreasonable application of, clearly established Federal

law, as determined by [this] Court,” 28 U. S. C. §2254(d)(1), and

thereby warranted federal habeas relief. Pp. 10–30. 

(a) This Court has long recognized that sentencing juries must be 

able to give meaningful consideration and effect to all mitigating evidence that might provide a basis for refusing to impose the death

penalty on a particular individual, notwithstanding the severity of 

his crime or his potential to commit similar offenses in the future. 

See, e.g., the plurality opinion in Lockett v. Ohio, 438 U. S. 586, 604. 

Among other things, however, the Lockett plurality distinguished the 

Ohio statute there invalidated from the Texas statute upheld in 

Jurek v. Texas, 428 U. S. 262, on the ground that the latter Act did 

not “clearly operat[e] at that time to prevent the sentencer from considering any aspect of the defendant’s character and record or any 

circumstances of his offense as an independently mitigating factor,” 

438 U. S., at 607. Nevertheless, the Court later made clear that sentencing under the Texas statute must accord with the Lockett rule. 

In Franklin v. Lynaugh, 487 U. S. 164, 185, Justice O’Connor’s opin-
Cite as: 550 U. S. ____ (2007) 3 

Syllabus 

ion concurring in the judgment expressed the view of five Justices

when she emphasized that “the right to have the sentencer consider

and weigh relevant mitigating evidence would be meaningless unless

the sentencer was also permitted to give effect to its consideration’ in 

imposing sentence.” Justice O’Connor’s opinion for the Court in 

Penry I, which unquestionably governs the facts of this case, endorsed the same views she had expressed in Franklin. In Penry I, the 

Court first held that in contending that his mental-retardation and

abusive-childhood mitigating evidence provided a basis for a life sentence rather than death and that the sentencing jury should have

been instructed to consider that evidence, Penry was not asking the 

Court to make new law because he was relying on a rule “dictated” by

earlier cases, 492 U. S., at 321, as defined by Justice O’Connor’s concurrence in Franklin v. Lynaugh. Applying that standard, Penry I

held that neither of Texas’ special issues allowed the jury to give 

meaningful effect to Penry’s mitigating evidence. The Penry I Court 

emphasized with respect to Texas’ “future dangerousness” special issue (as composed at the time of both Penry’s and Cole’s sentencing

proceedings) that Penry’s mitigating evidence functioned as a “twoedged sword” because it might “diminish his blameworthiness . . . 

even as it indicate[d] a probability that he [would] be dangerous.” 

492 U. S., at 324. The Court therefore required an appropriate instruction directing a jury to consider fully the mitigating evidence as

it bears on the extent to which a defendant is undeserving of death. 

Id., at 323. Thus, where the evidence is double edged or as likely to 

be viewed as aggravating as it is as mitigating, the statute does not

allow it to be given adequate consideration. Pp. 10–20.

(b) The Texas trial judge’s recommendation to the CCA to deny collateral relief in this case was unsupported by either the text or the 

reasoning in Penry I. Under Penry I, Cole’s family members’ testimony, as well as the portions of his expert testimony suggesting that 

his dangerousness resulted from a rough childhood and neurological 

damage, were not relevant to either of the special verdict questions,

except, possibly, as evidence of future dangerousness. Because this 

would not satisfy Penry I’s requirement that the evidence be permitted its mitigating force beyond the special issues’ scope, it would have 

followed that those issues failed to provide the jury with a vehicle for 

expressing its “reasoned moral response” to Cole’s mitigating evidence. In denying Cole relief, however, the Texas trial judge relied 

not on Penry I, but on three later Texas cases and Graham v. Collins, 

506 U. S. 461, defining the legal issue whether the mitigating evidence could be sufficiently considered as one to be determined on a

case-by-case basis, depending on the evidence’s nature and on 

whether its consideration was enabled by other evidence in the re-
4 ABDUL-KABIR v. QUARTERMAN 

Syllabus 

cord. The state court’s primary reliance on Graham was misguided.

In concluding that granting collateral relief to a defendant sentenced

to death in 1984 would require the announcement of a new constitutional rule, the Graham Court, 506 U. S., at 468–472, relied heavily

on the fact that in 1984 it was reasonable for judges to rely on the 

Franklin plurality’s categorical reading of Jurek, which, in its view, 

expressly and unconditionally upheld the manner in which mitigating evidence is considered under the special issues. But in both 

Franklin and Penry I, a majority ultimately rejected that interpretation. While neither Franklin nor Penry I was inconsistent with Graham’s narrow holding, they suggest that later decisions—including 

Johnson v. Texas, 509 U. S. 350, which refused to adopt the rule 

Graham sought—are more relevant to Cole’s case. The relevance of 

those cases lies not in their results, but in their failure to disturb the 

basic legal principle that continues to govern such cases: The jury 

must have a “meaningful basis to consider the relevant mitigating

qualities” of the defendant’s proffered evidence. Id., at 369. Several 

other reasons demonstrate that the CCA’s ruling was not a reasonable application of Penry I. First, the ruling ignored the fact that

Cole’s mitigating evidence of childhood deprivation and lack of selfcontrol was relevant to his moral culpability for precisely the same 

reason as Penry’s: It did not rebut either deliberateness or future

dangerousness but was intended to provide the jury with an entirely 

different reason for not imposing death. Second, the trial judge’s assumption that it would be appropriate to look at other testimony to

determine whether the jury could give mitigating effect to Cole’s family testimony is neither reasonable nor supported by Penry I. Third, 

simply because the jury could give mitigating effect to the experts’ 

predictions that Cole should become less dangerous as he aged does

not mean that the jury understood it could give such effect to other 

portions of the experts’ testimony or that of other witnesses. Pp. 21– 

24. 

(c) Four of the Court’s more recent cases support the conclusion

that the CCA’s decision was unsupported by Penry I’s text or reasoning. Although holding in Johnson, 509 U. S., at 368, that the Texas 

special issues allowed adequate consideration of petitioner’s youth as 

a mitigating circumstance, the Court also declared that “Penry remains the law and must be given a fair reading,” ibid. Arguments

like those of Cole’s prosecutor that the special issues require jurors to

disregard the force of evidence offered in mitigation and rely only on 

the facts are at odds with the Johnson Court’s understanding that juries could and would reach mitigating evidence proffered by a defendant. Further, evidence such as that presented by Cole is not like the 

evidence of youth offered in Johnson and Graham, which easily could 
Cite as: 550 U. S. ____ (2007) 5 

Syllabus 

have supported a negative answer to the question of future dangerousness, and is instead more like the evidence offered in Penry I, 

which compelled an affirmative answer to the same question, despite

its mitigating significance. That fact provides further support for the

conclusion that in a case like Cole’s, there is a reasonable likelihood 

that the special issues would preclude the jury from giving meaningful consideration to such mitigating evidence, as required by Penry I. 

In three later cases, the Court gave Penry I the “fair reading” Johnson contemplated, repudiating several Fifth Circuit precedents providing the basis for its narrow reading of Penry I. Penry v. Johnson, 

532 U. S. 782, 797 (Penry II); Tennard, 542 U. S., at 284; Smith v. 

Texas, 543 U. S. 37, 46. Pp. 25–28. 

418 F. 3d 494, reversed and remanded. 

STEVENS, J., delivered the opinion of the Court, in which KENNEDY, 

SOUTER, GINSBURG, and BREYER, JJ., joined. ROBERTS, C. J., filed a dissenting opinion, in which SCALIA, THOMAS, and ALITO, JJ., joined. 

SCALIA, J., filed a dissenting opinion, in which THOMAS, J., joined, and 

in which ALITO, J., joined as to Part I. 
_________________ 

_________________ 

Cite as: 550 U. S. ____ (2007) 1 

Opinion of the Court 

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press. 

SUPREME COURT OF THE UNITED STATES 

No. 05–11284 

JALIL ABDUL-KABIR, FKA TED CALVIN COLE, PETITIONER v. NATHANIEL QUARTERMAN, DIRECTOR,

TEXAS DEPARTMENT OF CRIMINAL JUSTICE, 

CORRECTIONAL INSTITUTIONS DIVISION

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE FIFTH CIRCUIT

[April 25, 2007] 

JUSTICE STEVENS delivered the opinion of the Court. 

Petitioner Jalil Abdul-Kabir, formerly known as Ted 

Calvin Cole,1 contends that there is a reasonable likelihood that the trial judge’s instructions to the Texas jury

that sentenced him to death prevented jurors from giving

meaningful consideration to constitutionally relevant 

mitigating evidence. He further contends that the judgment of the Texas Court of Criminal Appeals (CCA) denying his application for postconviction relief on November 

24, 1999, misapplied the law as clearly established by 

earlier decisions of this Court, thereby warranting relief

under the Antiterrorism and Effective Death Penalty Act

of 1996 (AEDPA), 28 U. S. C. §2254. We agree with both

contentions. Although the relevant state-court judgment

for purposes of our review under AEDPA is that adjudicating the merits of Cole’s state habeas application, in which 

—————— 

1For purposes of consistency with testimony given by witnesses at

trial and sentencing, we refer to petitioner throughout the opinion by

his given name, Ted Cole. 
2 ABDUL-KABIR v. QUARTERMAN 

Opinion of the Court 

these claims were properly raised, we are persuaded that

the same result would be dictated by those cases decided

before the state trial court entered its judgment affirming

Cole’s death sentence on September 26, 1990. Accordingly, we reverse the judgment of the Court of Appeals

and remand for further proceedings consistent with this

opinion. 

I 

In December 1987, Cole, his stepbrother Michael 

Hickey, and Michael’s wife, Kelly, decided to rob and kill 

Kelly’s grandfather, Raymond Richardson, to obtain some

cash. Two days later they did so. Cole strangled Richardson with a dog leash; the group then searched the house 

and found $20 that they used to purchase beer and food. 

The next day, Michael and Kelly surrendered to the police

and confessed. The police then arrested Cole who also 

confessed. 

Cole was tried by a jury and convicted of capital murder.

After a sentencing hearing, the jury was asked to answer

two special issues: 

“Was the conduct of the defendant, TED CALVIN 

COLE, that caused the death of the deceased, 

RAYMOND C. RICHARDSON, committed deliberately and with the reasonable expectation that the

death of the deceased or another would result? 

. . . . . 

“Is there a probability that the defendant, TED 

CALVIN COLE, would commit criminal acts of violence that would constitute a continuing threat to society?” App. 127–128.2 

—————— 

2These were the two standard Texas special issues in place at the

time of Cole’s sentencing. In 1991, the Texas Legislature amended the 

special issues in response to this Court’s decision in Penry v. Lynaugh, 

492 U. S. 302 (1989) (Penry I), to include language instructing the jury 
Cite as: 550 U. S. ____ (2007) 3 

Opinion of the Court 

The trial judge instructed the jury to take into consideration evidence presented at the guilt phase as well as

the sentencing phase of the trial but made no reference to

mitigating evidence. Under the provisions of the Texas 

criminal code, the jury’s affirmative answers to these two

special issues required the judge to impose a death sentence. See Tex. Code Crim. Proc. Ann., Art. 37.071 

(Vernon 2006).

At the sentencing hearing, the State introduced evidence that Cole pleaded guilty to an earlier murder when 

he was only 16. Shortly after being released on parole, 

Cole pleaded guilty to charges of aggravated sexual assault on two boys and was sentenced to 15 more years in

prison. As evidence of Cole’s propensity for future dangerousness, the State introduced Cole’s diary which, according to the State’s expert psychiatrist, Dr. Richard Coons, 

revealed a compulsive attraction to young boys and an 

obsession with criminal activity. Dr. Coons described Cole 

as a sociopath who lacked remorse and would not profit or 

learn from his experiences.

In response, Cole presented two categories of mitigating

evidence. The first consisted of testimony from his mother 

and his aunt, who described his unhappy childhood. Cole’s 

parents lived together “off and on” for 10 years, over the

course of which they had two children, Cole, and his 

younger sister, Carla. App. 35. Shortly after Cole was

born, his father was arrested for robbing a liquor store.

Cole’s father deserted the family several times, abandoning the family completely before Cole was five years old. 

—————— 

to decide “[w]hether, taking into consideration all of the evidence,

including the circumstances of the offense, the defendant’s character

and background, and the personal moral culpability of the defendant, 

there is a sufficient mitigating circumstance or circumstances to 

warrant that a sentence of life imprisonment without parole rather

than a death sentence be imposed.” Tex. Code Crim. Proc. Ann., Art.

37.071, §2(e)(1) (Vernon 2006). 
4 ABDUL-KABIR v. QUARTERMAN 

Opinion of the Court 

On the last occasion that Cole saw his father, he dropped

Cole off a block from where he thought Cole’s mother

lived, told Cole to “go find her,” and drove off. Id., at 42. 

Cole had no contact with his father during the next 10 

years. Ibid. After Cole’s father left, his mother found 

herself unable to care for Cole and his sister and took the 

children to live with her parents in Oklahoma. Cole’s 

grandparents were both alcoholics—Cole’s mother was 

herself a self-described “drunk”—and lived miles away 

from other children. Eventually, because Cole’s grandparents did not want their daughter or her children living 

with them, Cole’s mother placed him in a church-run

children’s home, although she kept her daughter with her.

Over the next five years Cole’s mother visited him only

twice. Cole’s aunt, who visited him on holidays, testified 

that Cole seemed incapable of expressing any emotion and 

that his father never visited him at all. 

The second category of mitigating evidence came from

two expert witnesses—a psychologist and the former chief 

mental health officer for the Texas Department of Corrections—who discussed the consequences of Cole’s childhood 

neglect and abandonment. Dr. Jarvis Wright, the psychologist, spent 8 to 10 hours interviewing Cole and administering an “extensive battery of psychological tests.” 

Id., at 63. He testified that Cole had “real problems with 

impulse control” apparently resulting from “central nervous damage” combined with “all the other factors of [his]

background.” Id., at 69. He also testified that Cole had 

likely been depressed for much of his life, that he had a 

“painful” background, and that he had “never felt loved 

and worthwhile in his life.” Id., at 73, 86. Providing an

analogy for Cole’s early development, Dr. Wright stated

that “the manufacturing process [had] botched the raw 

material horribly.” Id., at 73. 

When specifically asked about future dangerousness,

Dr. Wright acknowledged that “if Ted were released today 
Cite as: 550 U. S. ____ (2007) 5 

Opinion of the Court 

on the street, there’s a much greater probability of dangerous behavior than with the rest of us.” Id., at 74. 

Although he acknowledged the possibility of change or 

“burn out,” he admitted that Cole would likely pose a

threat of future dangerousness until “years from now.” 

Ibid. Except for his prediction that Cole would change as

he grew older, Dr. Wright’s testimony did not contradict

the State’s claim that Cole was a dangerous person, but 

instead sought to provide an explanation for his behavior 

that might reduce his moral culpability. 

Dr. Wendell Dickerson, a psychologist who had not 

previously examined Cole, observed that it was difficult to

predict future dangerousness, but that “violent conduct is

predominantly, overwhelmingly the province of the young” 

with the risk of violence becoming rare as people grow

older. Id., at 95. On cross-examination, in response to a 

hypothetical question about a person with Cole’s character 

and history, Dr. Dickerson acknowledged that he would be 

“alarmed” about the future conduct of such a person because “yes, there absolutely is a probability that they 

would commit . . . future acts of violence.” Id., at 113. In 

sum, the strength of Cole’s mitigating evidence was not its

potential to contest his immediate dangerousness, to

which end the experts’ testimony was at least as harmful 

as it was helpful. Instead, its strength was its tendency to

prove that his violent propensities were caused by factors 

beyond his control—namely, neurological damage and 

childhood neglect and abandonment. 

It was these latter considerations, however, that the 

prosecutor discouraged jurors from taking into account 

when formulating their answers to the special issues.

During the voir dire, the prosecutor advised the jurors

that they had a duty to answer the special issues based on 

the facts, and the extent to which such facts objectively

supported findings of deliberateness and future dangerousness, rather than their views about what might be an 
6 ABDUL-KABIR v. QUARTERMAN 

Opinion of the Court 

appropriate punishment for this particular defendant. For 

example, juror Beeson was asked: 

“[I]f a person had a bad upbringing, but looking at

those special issues, you felt that they [sic] met the 

standards regarding deliberateness and being a continuing threat to society, could you still vote ‘yes,’ 

even though you felt like maybe they’d [sic] had a 

rough time as a kid? If you felt that the facts brought 

to you by the prosecution warranted a ‘yes’ answer, 

could you put that out of your mind and just go by the 

facts? 

. . . . . 

[T]hat would not keep you from answering ‘yes,’ just 

because a person had a poor upbringing, would it?” XI 

Voir Dire Statement of Facts filed in No. CR88–0043– 

A (Dist. Ct. Tom Green Cty., Tex., 51st Jud. Dist.), p.

1588. 

The prosecutor began his final closing argument with a

reminder to the jury that during the voir dire they had

“promised the State that, if it met its burden of proof,” 

they would answer “yes” to both special issues. App. 145.

The trial judge refused to give any of several instructions 

requested by Cole that would have authorized a negative 

answer to either of the special issues on the basis of “any 

evidence which, in [the jury’s] opinion, mitigate[d] against 

the imposition of the Death Penalty, including any aspect 

of the Defendant’s character or record.” Id., at 115; see 

also id., at 117–124. Ultimately, the jurors answered both

issues in the affirmative and Cole was sentenced to death. 

On direct appeal, the sole issue raised by Cole was that 

the evidence was insufficient to support the jury’s verdict.

The CCA rejected Cole’s claim and affirmed the judgment

of the trial court on September 26, 1990. 

II 

On March 2, 1992, the lawyer who then represented 
Cite as: 550 U. S. ____ (2007) 7 

Opinion of the Court 

Cole filed an application for a writ of habeas corpus in the 

Texas trial court, alleging 21 claims of error.3 Counsel 

later withdrew, and after delays caused in part by a letter

from Cole to the trial judge stating that he wished to

withdraw his “appeal,” the judge ultimately “had petitioner bench warranted” to a hearing on September 4, 

1998. Id., at 152–153. During that hearing, Cole advised 

the court that he wished to proceed with his habeas proceedings and to have the CCA appoint counsel to represent 

him. Without counsel having been appointed to represent

Cole, and without conducting an evidentiary hearing, the 

trial court entered its findings and conclusions recommending denial of the application. 

Three of Cole’s 21 claims related to the jury’s inability to

consider mitigating evidence. The trial judge rejected the

first—“that his mitigating evidence was not able to be 

properly considered and given effect by the jury under the 

special issues,” id., at 157—because he concluded that the 

record, and “especially” the testimony of the two expert

witnesses, “provide[d] a basis for the jury to sufficiently

consider the mitigating evidence offered by petitioner,”4 

—————— 

3Although Cole had not raised any of the 21 claims presented in his 

state habeas application on direct appeal—including his claim that the 

jury heard significant mitigating evidence which it could neither

consider nor give effect to under the Texas sentencing statute, in

violation of Penry I—under state law, his Penry claim remained cognizable on state habeas review. See Ex parte Kunkle, 852 S. W. 2d 499, 

502, n. 3 (Tex. Crim. App. 1993) (en banc) (holding that “we have held 

that [allegations of Penry error occurring in cases tried before Penry]

are cognizable via habeas corpus despite an applicant’s failure to raise

them on direct appeal”). Nor did Cole’s failure to raise this claim on 

direct appeal affect its later review under AEDPA by the United States

Court of Appeals for the Fifth Circuit. See Jackson v. Johnson, 150 

F. 3d 520, 523 (CA5 1998) (holding that Texas’ postconviction procedures provide petitioners “adjudication on the merits” sufficient to 

satisfy 28 U. S. C. §2254(d)). 4The trial judge also noted that there were “no controverted, previously unresolved factual issues regarding petitioner’s Pendry [sic] 
8 ABDUL-KABIR v. QUARTERMAN 

Opinion of the Court 

id., at 161. With respect to Cole’s second claim, the judge 

agreed that appellate counsel had been ineffective for 

failing to assign error based on “the trial court’s failure to 

instruct the jury on mitigating evidence as contemplated 

by the Pendry [sic] decision.” Id., at 166. He nevertheless 

found that the result on appeal would have been the same

had the point been raised. Ibid. On the third claim relating to mitigating evidence, the judge rejected Cole’s argument that the trial court’s failure to specifically instruct

the jury to consider mitigating evidence and offer a definition of “mitigating” was error. Id., at 173. 

Over the dissent of two members of the court, and after 

adopting the trial court’s findings of fact and conclusions 

of law with only minor changes, the CCA denied Cole’s

application for state collateral relief. Ex parte Cole, No. 

41,673–01 (Nov. 24, 1999) (per curiam), App. 178–179. We 

consolidated this case with Brewer v. Quarterman, post, p.

___, and granted certiorari, 549 U. S. ___ (2006). 

III 

After the Federal District Court granted Cole’s motion

for the appointment of counsel, he filed a timely petition 

for a federal writ of habeas corpus pursuant to 28 U. S. C. 

§2254. His principal claim then, as it is now, was that the 

sentencing jury “was unable to consider and give effect to 

the mitigating evidence in his case,” in violation of the 

Constitution. Cole v. Johnson, Civ. Action No. 6:00–CV– 

014–C (ND Tex., Mar. 6, 2001), p. 5, App. 184. 

In its opinion denying relief, the District Court began by 

summarizing Cole’s mitigating evidence, highlighting his 

“destructive family background.” Ibid. The court then 

correctly described our decision in Penry I, 492 U. S. 302, 

in these words: 

“In [Penry] the Supreme Court found that when the 

—————— 

claim.” App. 161. 
Cite as: 550 U. S. ____ (2007) 9 

Opinion of the Court 

defendant places mitigating evidence before the jury,

Texas juries must be given instructions which allow 

the jury to give effect to that mitigating evidence and 

to express its reasoned moral response to that evidence in determining whether to impose the death 

penalty.”5 Civ. Action No. 6:00–CV–014–C, at 8–9, 

App. 188. 

The court next noted that the Fifth Circuit had formulated its own analysis for evaluating Penry claims. Under 

that analysis, for mitigating evidence to be constitutionally relevant, it “must show (1) a uniquely severe permanent handicap with which the defendant is burdened 

through no fault of his own, . . . and (2) that the criminal 

act was attributable to this severe permanent condition.” 

Civ. Action No. 6:00–CV–014–C, at 9, App. 189 (quoting 

Davis v. Scott, 51 F. 3d 457, 460–461 (CA5 1995) (internal 

quotation marks omitted; emphasis added)). Ultimately,

Cole’s inability to show a “nexus” between his troubled 

family background and his commission of capital murder 

doomed his Penry claim. Civ. Action No. 6:00–CV–014–C, 

at 13, App. 193. 

The Court of Appeals denied Cole’s application for a

certificate of appealability (COA), holding that “reasonable

jurists would not debate the district court’s conclusion that

Cole’s evidence was not constitutionally relevant mitigating evidence.” Cole v. Dretke, 418 F. 3d 494, 498 (CA5 

2005). Shortly thereafter, however, we held that the Fifth

Circuit’s “screening test” for determining the “ ‘constitutional relevance’” of mitigating evidence had “no foundation in the decisions of this Court.” Tennard v. Dretke, 542 

—————— 

5The contrast between the District Court’s succinct statement of 

Penry I’s holding and the prosecutor’s explanation at voir dire of the 

jurors’ duty to answer the special issues on the basis of the facts presented and not their views about Cole’s moral culpability, see Part I, 

supra, could not be more stark. 
10 ABDUL-KABIR v. QUARTERMAN 

Opinion of the Court 

U. S. 274, 284 (2004). Accordingly, we vacated its order 

denying a COA in this case and remanded for further

proceedings. On remand, the Court of Appeals reviewed 

Cole’s Penry claim on the merits and affirmed the District 

Court’s judgment denying the writ.

Focusing primarily on the testimony of petitioner’s two

experts rather than that of his mother and his aunt, the

Court of Appeals reviewed our recent decisions and concluded “that the Texas special issues allowed the jury to 

give ‘full consideration and full effect’ to the mitigating 

evidence that Cole presented at the punishment phase of 

his trial.”6 418 F. 3d, at 511. With two judges dissenting,

the court denied the petition for rehearing en banc.7 

IV 

Because Cole filed his federal habeas petition after the

effective date of AEDPA, the provisions of that Act govern 

the scope of our review. We must therefore ask whether 

the CCA’s adjudication of Cole’s claim on the merits “resulted in a decision that was contrary to, or involved an 

unreasonable application of, clearly established Federal 

law, as determined by the Supreme Court of the United

States.” 28 U. S. C. §2254(d)(1). We conclude that it did. 

A careful review of our jurisprudence in this area makes 

clear that well before our decision in Penry I, our cases 

had firmly established that sentencing juries must be able 

—————— 

6The Court of Appeals distinguished Penry I on the ground that 

Penry’s evidence of mental retardation could only have been considered 

as aggravating, whereas this “record does not suggest that the jury

viewed Cole’s mitigating evidence as an aggravating factor only . . . . 

[T]his evidence fits well within the broad scope of the future dangerousness special issue . . . .” 418 F. 3d, at 506–507, and n. 54. 7 In his dissent, Judge Dennis argued that the panel had improperly 

“used another Fifth Circuit gloss upon a Supreme Court decision, i.e.,

the double edged evidence limitation of Penry I, that has no basis in the 

Supreme Court decisions, to avoid confronting the real issue.” Cole v. 

Dretke, 443 F. 3d 441, 442 (CA5 2006) (per curiam). 
Cite as: 550 U. S. ____ (2007) 11 

Opinion of the Court 

to give meaningful consideration and effect to all mitigating evidence that might provide a basis for refusing to 

impose the death penalty on a particular individual, notwithstanding the severity of his crime or his potential to 

commit similar offenses in the future. Three of the five 

cases decided on the same day in 1976— Woodson v. North 

Carolina, 428 U. S. 280 (1976), Proffitt v. Florida, 428 

U. S. 242 (1976), and Jurek v. Texas, 428 U. S. 262 

(1976)—identified the background principles we would

apply in later cases to evaluate specific rules inhibiting

the jury’s ability to give meaningful effect to such mitigating evidence.

In Woodson v. North Carolina, we invalidated a statute 

that made death the mandatory sentence for all persons

convicted of first-degree murder. One of the statute’s 

constitutional shortcomings was its “failure to allow the

particularized consideration of relevant aspects of the

character and record of each convicted defendant before 

the imposition upon him of a sentence of death.” 428 

U. S., at 303 (plurality opinion).8 In Proffitt v. Florida and 

Jurek v. Texas, the joint opinions rejected facial challenges 

to the sentencing statutes enacted in Florida and Texas,

assuming in both cases that provisions allowing for the 

unrestricted admissibility of mitigating evidence would 

ensure that a sentencing jury had adequate guidance in

performing its sentencing function.9 As a majority of the 

—————— 

8The opinion also referred to a proposition that “cannot fairly be

denied—that death is a punishment different from all other sanctions

in kind rather than degree,” and continued on to conclude that “[a]

process that accords no significance to relevant facets of the character

and record of the individual offender or the circumstances of the particular offense excludes from consideration in fixing the ultimate

punishment of death the possibility of compassionate or mitigating

factors stemming from the diverse frailties of humankind.” Woodson, 

428 U. S., at 303–304. 9 “By authorizing the defense to bring before the jury at the separate

sentencing hearing whatever mitigating circumstances relating to the 
12 ABDUL-KABIR v. QUARTERMAN 

Opinion of the Court 

Court later acknowledged, our holding in Jurek did not 

preclude the possibility that the Texas sentencing statute 

might be found unconstitutional as applied in a particular 

case. See n. 15, infra. 

Two years later, in Lockett v. Ohio, 438 U. S. 586 (1978), 

a plurality concluded “that the Eighth and Fourteenth 

Amendments require that the sentencer, in all but the

rarest kind of capital case, not be precluded 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 proffers as a basis for a sentence less than death.” Id., at 604 (footnote omitted). 

Because Ohio’s death penalty statute was inconsistent 

with this principle, it was declared unconstitutional. The 

plurality noted the possible tension between a holding that 

the Ohio statute was invalid and our decisions in Proffitt 

and Jurek upholding the Florida and Texas statutes, but 

distinguished those cases because neither statute “clearly 

operated at that time to prevent the sentencer from considering any aspect of the defendant’s character and record or any circumstances of his offense as an independently mitigating factor.” 438 U. S., at 607.

While Chief Justice Burger’s opinion in Lockett was 

joined by only three other Justices, the rule it announced 

was endorsed and broadened in our subsequent decisions

in Eddings v. Oklahoma, 455 U. S. 104 (1982), and Skipper v. South Carolina, 476 U. S. 1 (1986). In those cases, 

we emphasized the severity of imposing a death sentence

and that “the sentencer in capital cases must be permitted

to consider any relevant mitigating factor.”10 Eddings, 

—————— 

individual defendant can be adduced, Texas has ensured that the 

sentencing jury will have adequate guidance to enable it to perform its

sentencing function.” Jurek, 428 U. S., at 276 (joint opinion of Stewart, 

Powell, and STEVENS, JJ.); see also Proffitt, 428 U. S., at 257–258 

(same). 10 In Penry I itself, the Court noted that the rule sought by Penry— 
Cite as: 550 U. S. ____ (2007) 13 

Opinion of the Court 

455 U. S., at 112 (emphasis added).

In the wake of our decision in Lockett, Ohio amended its 

capital sentencing statute to give effect to Lockett’s holding.11 Neither Florida nor Texas did so, however, until 

after our unanimous decision in Hitchcock v. Dugger, 481 

U. S. 393 (1987), unequivocally confirmed the settled

quality of the Lockett rule. As JUSTICE SCALIA’s opinion

for the Court explained, the defendant had introduced

some rather atypical mitigating evidence that was not

expressly authorized by the Florida statute: 

“In the sentencing phase of this case, petitioner’s

counsel introduced before the advisory jury evidence 

that as a child petitioner had the habit of inhaling 

gasoline fumes from automobile gas tanks; that he 

had once passed out after doing so; that thereafter his 

mind tended to wander; that petitioner had been one 

of seven children in a poor family that earned its living by picking cotton; that his father had died of cancer; and that petitioner had been a fond and affectionate uncle to the children of one of his brothers.” 481 

U. S., at 397. 

As the opinion further explained, the Florida courts had 

construed the state statute to preclude consideration of 

mitigating factors unmentioned in the statute. Accordingly, despite our earlier decision in Proffitt upholding the 

statute against a facial challenge, it was necessary to set 

—————— 

“that when such mitigating evidence is presented, Texas juries must,

upon request, be given jury instructions that make it possible for them 

to give effect to that mitigating evidence in determining whether the

death penalty should be imposed—is not a ‘new rule’ under Teague [v. 

Lane, 489 U. S. 288 (1989),] because it is dictated by Eddings and 

Lockett.” 492 U. S., at 318–319. 11See Ohio Rev. Code Ann. §2929.04(B)(7) (Anderson 1982) (amended 

1981) (adding, as a mitigating circumstance, “[a]ny other factors that

are relevant to the issue of whether the offender should be sentenced to 

death”). 
14 ABDUL-KABIR v. QUARTERMAN 

Opinion of the Court 

aside Hitchcock’s death sentence. We explained: 

“We think it could not be clearer that the advisory 

jury was instructed not to consider, and the sentencing judge refused to consider, evidence of nonstatutory

mitigating circumstances, and that the proceedings 

therefore did not comport with the requirements of 

Skipper v. South Carolina, 476 U. S. 1 (1986), Eddings v. Oklahoma, 455 U. S. 104 (1982), and Lockett 

v. Ohio, 438 U. S. 586 (1978) (plurality opinion). Respondent has made no attempt to argue that this error was harmless, or that it had no effect on the jury

or the sentencing judge. In the absence of such a 

showing our cases hold that the exclusion of mitigating evidence of the sort at issue here renders the

death sentence invalid. See Skipper, supra (evidence

that defendant had adapted well to prison life); Eddings, supra (evidence of 16-year-old defendant’s 

troubled family history and emotional disturbance).”

481 U. S., at 398–399. 

Of course, our reference to “exclusion” of the evidence did 

not refer to its admissibility, but rather to its exclusion

from meaningful consideration by the jury. Had Jurek 

and Proffitt truly stood for the proposition that the mere

availability of relevant mitigating evidence was sufficient

to satisfy the Constitution’s requirements, Hitchcock could 

never have been decided as it was.12 

—————— 

12To the extent that Jurek implied at the time it was decided that all

that was required by the Constitution was that the defense be authorized to introduce all relevant mitigating circumstances, and that such

information merely be before the jury, it has become clear from our 

later cases that the mere ability to present evidence is not sufficient.

The only mitigating evidence presented in Jurek—offered to rebut the 

State’s witnesses’ testimony about Jurek’s bad reputation in the community—appears to have consisted of Jurek’s father’s testimony that

Jurek had “always been steadily employed since he had left school and 

that he contributed to his family’s support.” 428 U. S., at 267. There-
Cite as: 550 U. S. ____ (2007) 15 

Opinion of the Court 

In the year following our decision in Hitchcock, we made 

clear that sentencing under the Texas statute, like that 

under the Florida statute, must accord with the Lockett 

rule. In Franklin v. Lynaugh, 487 U. S. 164, 172, 177, 183 

(1988), the plurality rejected the claim that the judge’s 

instructions did not allow the jury to give adequate weight

to whatever “‘residual doubts’” it may have had concerning the defendant’s guilt, or to evidence of the petitioner’s

good behavior while in prison. That particular holding is

unremarkable because we have never held that capital 

defendants have an Eighth Amendment right to present 

“residual doubt” evidence at sentencing, see Oregon v. 

Guzek, 546 U. S. 517, 523–527 (2006), and in most cases

evidence of good behavior in prison is primarily, if not 

exclusively, relevant to the issue of future dangerousness. 

What makes Franklin significant, however, is the separate

opinion of Justice O’Connor, and particularly those portions of her opinion expressing the views of five Justices, 

see infra, at 18, and n. 15. After summarizing the cases

that clarified Jurek’s holding,13 she wrote: 

—————— 

fore, the question presented in our later cases—namely, whether the 

jury was precluded from giving meaningful effect to mitigating evidence, particularly that which may go to a defendant’s lack of moral 

culpability—was not at issue in that case. When we deemed the Texas 

sentencing scheme constitutionally adequate in Jurek, we clearly failed 

to anticipate that when faced with various other types of mitigating

evidence, the Texas special issues would not provide the sentencing

jury with the requisite “adequate guidance.” 

13 “In Jurek v. Texas, 428 U. S. 262 (1976), this Court held that the 

Texas capital sentencing procedures satisfied the Eighth Amendment

requirement that the sentencer be allowed to consider circumstances

mitigating against capital punishment. It was observed that even 

though the statute did not explicitly mention mitigating circumstances,

the Texas Court of Criminal Appeals had construed the special verdict

question regarding the defendant’s future dangerousness to permit jury

consideration of the defendant’s prior criminal record, age, mental

state, and the circumstances of the crime in mitigation. Id., at 271– 

273. Since the decision in Jurek, we have emphasized that the Consti-
16 ABDUL-KABIR v. QUARTERMAN 

Opinion of the Court 

“In my view, the principle underlying Lockett, Eddings, and Hitchcock is that punishment should be directly related to the personal culpability of the criminal defendant. 

“‘[E]vidence about the defendant’s background and 

character is relevant because of the belief, long held 

by this society, that defendants who commit criminal

acts that are attributable to a disadvantaged background, or to emotional and mental problems, may be

less culpable than defendants who have no such excuse. . . . Thus, the sentence imposed at the penalty 

stage should reflect a reasoned moral response to the 

defendant’s background, character, and crime.’ California v. Brown, 479 U. S. 538, 545 (1987) (O’Connor, 

J., concurring) (emphasis in original). 

“In light of this principle it is clear that a State may 

not constitutionally prevent the sentencing body from

giving effect to evidence relevant to the defendant’s 

background or character or the circumstances of the 

offense that mitigates against the death penalty. Indeed, the right to have the sentencer consider and 

weigh relevant mitigating evidence would be meaningless unless the sentencer was also permitted to give effect to its consideration. 

“Under the sentencing procedure followed in this case 

the jury could express its views about the appropriate 

—————— 

tution guarantees a defendant facing a possible death sentence not only

the right to introduce evidence mitigating against the death penalty

but also the right to consideration of that evidence by the sentencing 

authority. Lockett v. Ohio, 438 U. S. 586 (1978), established that a

State may not prevent the capital sentencing authority ‘from giving 

independent mitigating weight to aspects of the defendant’s character 

and record and to circumstances of the offense proffered in mitigation.’ 

Id., at 605 (plurality opinion). We reaffirmed this conclusion in Eddings v. Oklahoma, 455 U. S. 104 (1982), and in Hitchcock v. Dugger, 

481 U. S. 393 (1987).” Franklin, 487 U. S., at 183–184 (emphasis 

added). 
Cite as: 550 U. S. ____ (2007) 17 

Opinion of the Court 

punishment only by answering the special verdict 

questions regarding the deliberateness of the murder 

and the defendant’s future dangerousness. To the extent that the mitigating evidence introduced by petitioner was relevant to one of the special verdict questions, the jury was free to give effect to that evidence 

by returning a negative answer to that question. If, 

however, petitioner had introduced mitigating evidence about his background or character or the circumstances of the crime that was not relevant to the 

special verdict questions, or that had relevance to the

defendant’s moral culpability beyond the scope of the

special verdict questions, the jury instructions would 

have provided the jury with no vehicle for expressing 

its ‘reasoned moral response’ to that evidence.” 487 

U. S., at 183, 184–185 (opinion concurring in judgment) (emphasis added).

Justice O’Connor’s opinion for the Court in Penry I

endorsed the views she had expressed in Franklin and 

unquestionably governs the facts of this case.14 Penry

contended that his mitigating evidence of mental retarda-

—————— 

14 THE CHIEF JUSTICE’s dissent incorrectly assumes that our holding 

today adopts the rule advocated by the petitioner in Graham v. Collins, 

506 U. S. 461 (1993), namely, that “ ‘a defendant is entitled to special

instructions whenever he can offer mitigating evidence that has some 

arguable relevance beyond the special issues.’ ” Post, at 7 (quoting 

Graham, 506 U. S., at 476; emphasis in Graham). The rule that we 

reaffirm today—a rule that has been clearly established since our 

decision in Penry I—is this: Special instructions are necessary when the 

jury could not otherwise give meaningful effect to a defendant’s mitigating evidence. The rule is narrower than the standard urged by Graham

because special instruction is not required when mitigating evidence 

has only a tenuous connection—“some arguable relevance”—to the 

defendant’s moral culpability. But special instruction is necessary 

when the defendant’s evidence may have meaningful relevance to the 

defendant’s moral culpability “beyond the scope of the special issues.” 

Penry I, 492 U. S., at 322–323. Despite the dissent's colorful rhetoric, it 

cites no post-Penry I cases inconsistent with this reading of its holding. 
18 ABDUL-KABIR v. QUARTERMAN 

Opinion of the Court 

tion and an abusive childhood provided a basis for a sentence of life imprisonment rather than death and that the 

jury should have been instructed that it could consider

that evidence when making its sentencing decision. In 

response to that contention, our opinion first held that

Penry was not asking us to make new law because he was 

relying on a rule that was “dictated” by earlier cases, see 

n. 10, supra, and explained why Justice O’Connor’s separate opinion in Franklin correctly defined the relevant 

rule of law.15 In Franklin, we noted, “both the concurrence 

and the dissent stressed that ‘the right to have the sentencer consider and weigh relevant mitigating evidence 

would be meaningless unless the sentencer was also permitted to give effect to its consideration’ in imposing sentence.” 492 U. S., at 321 (citing Franklin, 487 U. S., at 185 

(O’Connor, J., concurring in judgment); id., at 199 

(STEVENS, J., dissenting)). 

Applying that standard, we held that neither the “deliberateness” nor the “future dangerousness” special issue 

—————— 

15 “In Franklin, however, the five concurring and dissenting Justices 

did not share the plurality’s categorical reading of Jurek. In the plurality’s view, Jurek had expressly and unconditionally upheld the manner 

in which mitigating evidence is considered under the special issues. 

Id., at 179–180, and n. 10. In contrast, five Members of the Court read 

Jurek as not precluding a claim that, in a particular case, the jury was

unable to fully consider the mitigating evidence introduced by a defendant in answering the special issues. 487 U. S., at 183 (O’CONNOR, J., 

concurring in judgment); id., at 199–200 (STEVENS, J., dissenting).

Indeed, both the concurrence and the dissent understood Jurek as 

resting fundamentally on the express assurance that the special issues 

would permit the jury to fully consider all the mitigating evidence a 

defendant introduced that was relevant to the defendant’s background

and character and to the circumstances of the offense.” Penry I, 492 

U. S., at 320–321; see also id., at 318 (“[T]he facial validity of the Texas

death penalty statute had been upheld in Jurek 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”). 
Cite as: 550 U. S. ____ (2007) 19 

Opinion of the Court 

provided the jury with a meaningful opportunity to give

effect to Penry’s mitigating evidence. With respect to the 

former, we explained: 

“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.” 492 U. S., at 323. 

With respect to the future dangerousness issue, we

emphasized the fact that Penry’s evidence of mental retardation was relevant only as an aggravating factor. Id., 

at 323–324. More broadly, we noted that the evidence of 

Penry’s mental retardation and childhood abuse functioned as a “two-edged sword,” because it “may diminish

his blameworthiness for his crime even as it indicates that 

there is a probability that he will be dangerous in the

future.” Id., at 324. We therefore held that, in the absence of an appropriate instruction directing the “jury to

consider fully” mitigating evidence as it bears on the

extent to which a defendant is undeserving of a death

sentence, “we cannot be sure” that it did so. Id., at 323. 

As our discussion of the deliberateness issue demonstrates, we did not limit our holding in Penry I to mitigating evidence that can only be viewed as aggravating. 
20 ABDUL-KABIR v. QUARTERMAN 

Opinion of the Court 

When the evidence proffered is double edged, or is as 

likely to be viewed as aggravating as it is as mitigating,

the statute most obviously fails to provide for adequate 

consideration of such evidence.16 

The former special issues (as composed at the time of 

both Penry’s and Cole’s sentencing proceedings) provided 

an adequate vehicle for the evaluation of mitigating evidence offered to disprove deliberateness or future dangerousness. As Judge Reavley noted in his opinion for the 

Court of Appeals in Penry I, however, they did not tell the

jury as to what “to do if it decided that Penry, because of

retardation, arrested emotional development and a troubled youth, should not be executed.” Id., at 324 (internal 

quotation marks omitted). 

—————— 

16 It is also clear that Penry I applies in cases involving evidence that 

is neither double edged nor purely aggravating, because in some cases a

defendant’s evidence may have mitigating effect beyond its ability to

negate the special issues. See, e.g., Tennard v. Dretke, 542 U. S. 274, 

288–289 (2004) (holding that petitioner was entitled to a COA on his 

Penry claim where his evidence of low IQ and impaired intellectual 

functioning had “mitigating dimension beyond the impact it has on the 

individual’s ability to act deliberately”). In Tennard, the majority

declined to accept the dissent’s argument that the petitioner’s evidence

of low intelligence did “not necessarily create the Penry I ‘two-edged

sword,’ ” and therefore could be given adequate mitigating effect within 

the context of the future dangerousness special issue. 542 U. S., at 293 

(Rehnquist, C. J., dissenting). Cf. Johnson v. Texas, 509 U. S. 350, 386 

(O’Connor, J., dissenting), in turn citing Penry I, 492 U. S., at 355 

(SCALIA, J., concurring in part and dissenting in part) (“The Court today 

holds that ‘the constitutionality turns on whether the [special] questions allow mitigating factors not only to be considered . . . , but also to 

be given effect in all possible ways, including ways that the questions do 

not permit’ ” (emphasis in original)); cf. also Smith v. Texas, 543 U. S. 

37, 41, 46–48 (2004) (per curiam) (reversing the CCA’s denial of postconviction relief because the special issues did not provide an adequate

vehicle for expressing a “ ‘reasoned moral response’ ” to petitioner’s 

evidence of low IQ and a troubled upbringing). 
Cite as: 550 U. S. ____ (2007) 21 

Opinion of the Court 

V 

In recommending denial of Cole’s application for collateral relief, the Texas trial judge did not analyze Penry I

itself. Under the framework set forth in Penry I,17 the 

testimony of Cole’s mother and aunt, as well as the portions of the expert testimony suggesting that his dangerous character may have been the result of his rough childhood and possible neurological damage, were not relevant 

to either of the special verdict questions, except, possibly,

as evidence supporting the State’s argument that Cole 

would be dangerous in the future. This would not satisfy 

the requirement of Penry I, however, that the evidence be 

permitted its mitigating force beyond the scope of the 

special issues. Therefore, it would have followed that 

those questions failed to provide the jury with a vehicle for

expressing its “reasoned moral response” to that evidence.

Instead of relying on Penry I, the trial judge relied on 

three later Texas cases and on our opinion in Graham v. 

—————— 

17The lynchpin of THE CHIEF JUSTICE’s dissent is his assumption that 

Justice O’Connor’s opinions in Franklin and Penry I merely described 

two ad hoc judgments—see post, at 2, 5–6—rather than her understanding of the governing rule of law announced in Lockett, Eddings, 

and Hitchcock v. Dugger, 481 U. S. 393 (1987). In his view, our line of 

cases in this area has flip-flopped, depending on the composition of the

majority, rather than slowly defining core principles by eliminating

those interpretations of the rule that are unsupportable. The fact that 

Justice O’Connor’s understanding of the law was confirmed by the

Court in Penry I in 1989—well before AEDPA was enacted—is a sufficient response to most of the rhetoric in the dissent. Neither Justice 

O’Connor’s opinion for the Court in Penry I, nor any other opinion she 

joined, ever endorsed the “ ‘some arguable relevance’ ” position described 

by THE CHIEF JUSTICE, see post, at 7, 16, which mistakenly interprets

our opinion as adopting the rule that the dissenters in Franklin and 

Saffle would have chosen, see post, at 7, 16. The fact that the Court 

never endorsed that broader standard is fully consistent with our 

conclusion that the narrower rule applied in Penry I itself is “clearly 

established.” Arguments advanced in later dissenting opinions do not 

affect that conclusion. 
22 ABDUL-KABIR v. QUARTERMAN 

Opinion of the Court 

Collins, 506 U. S. 461 (1993), as having held that nine

different categories of mitigating evidence—including a

troubled family background, bipolar disorder, low IQ,

substance abuse, paranoid personality disorder, and child

abuse—were sufficiently considered under the Texas 

special issues.18 App. 159–160. Applying those cases, the

judge defined the legal issue “whether the mitigating

evidence can be sufficiently considered” as one that “must

be determined on a case by case basis, depending on the

nature of the mitigating evidence offered and whether 

there exists other testimony in the record that would allow

consideration to be given.” Id., at 160. As we have noted, 

in endorsing this formulation of the issue, neither the trial 

judge nor the CCA had the benefit of any input from counsel representing petitioner. See Part II, supra. In our 

view, denying relief on the basis of that formulation of the

issue, while ignoring the fundamental principles established by our most relevant precedents, resulted in a

decision that was both “contrary to” and “involved an 

unreasonable application of, clearly established Federal 

law, as determined by the Supreme Court of the United

States.” 28 U. S. C. §2254(d). 

—————— 

18The Texas cases relied upon by the court were Garcia v. State, 919 

S. W. 2d 370, 398–399 (Tex. Crim. App. 1996) (en banc) (holding that, 

in light of the fact that Garcia received a “Penry” instruction (included

in the amended Texas special issues), which instructed the jury to

consider the defendant’s character and background in determining

whether to impose life rather than death, he was not entitled to any

special instructions requiring the jury to consider his drug use, alcoholism, and family background as mitigating evidence); Mines v. State, 888 

S. W. 2d 816, 818 (Tex. Crim. App. 1994) (en banc) (holding, on remand

after Johnson, that Mines’ mitigating evidence of bipolar disorder was 

“well within the effective reach of the jury”); and Zimmerman v. State, 

881 S. W. 2d 360, 362 (Tex. Crim. App. 1994) (en banc) (holding, also on

remand after Johnson, that Zimmerman’s “mitigating” evidence of low

IQ, past substance abuse, a diagnosis of paranoid personality disorder, 

and a disruptive family environment did not warrant an additional 

instruction under Johnson or Penry I). 
Cite as: 550 U. S. ____ (2007) 23 

Opinion of the Court 

The state court’s primary reliance on Graham, to the 

exclusion of our other cases in this line of jurisprudence,

was misguided. In Graham, we held that granting collateral relief to a defendant who had been sentenced to death 

in 1984 would require the announcement of a new rule of 

constitutional law in contravention of Teague v. Lane, 489 

U. S. 288 (1989). In reaching that conclusion we relied 

heavily on the fact that in 1984 it was reasonable for 

judges to rely on the interpretation of Jurek that the 

plurality had espoused in Franklin. See 506 U. S., at 468– 

472; see also n. 15, supra. But as we have explained, in 

both Franklin and Penry I, a majority of the Court ultimately rejected the plurality’s interpretation of Jurek. 

Neither Franklin nor Penry I was inconsistent with Graham’s narrow holding, but they do suggest that our later

decisions—including Johnson v. Texas, 509 U. S. 350 

(1993), in which we refused to adopt the rule that Graham 

sought19— are of more relevance to Cole’s case than Graham. The relevance of those cases lies not in their results—in several instances, we concluded, after applying 

the relevant law, that the special issues provided for 

adequate consideration of the defendant’s mitigating

evidence20—but in their failure to disturb the basic legal 

principle that continues to govern such cases: The jury

must have a “meaningful basis to consider the relevant

mitigating qualities” of the defendant’s proffered evidence.21 Johnson, 509 U. S., at 369; see also Graham, 506 

—————— 

19Graham claimed that the Texas system had not “allowed for adequate consideration of mitigating evidence concerning his youth, family

background, and positive character traits”; in Johnson, we declined to 

adopt such a rule, even without the Teague bar that prevented us from 

doing so in Graham. 509 U. S., at 365–366. 20This fact should be reassuring to those who fear that the rule we

endorse today—and which we have endorsed since Penry I—“would 

require a new sentencing in every case.” Post, at 8 (ROBERTS, C. J., 

dissenting). 21A jury may be precluded from doing so not only as a result of the 
24 ABDUL-KABIR v. QUARTERMAN 

Opinion of the Court 

U. S., at 474 (explaining that Penry was entitled to additional instructions “[b]ecause it was impossible [for the 

jury] to give meaningful mitigating effect to Penry’s evidence by way of answering the special issues”). 

Before turning to those more recent cases, it is appropriate to identify the reasons why the CCA’s ruling was 

not a reasonable application of Penry I itself. First, the 

ruling ignored the fact that even though Cole’s mitigating 

evidence may not have been as persuasive as Penry’s, it 

was relevant to the question of Cole’s moral culpability for 

precisely the same reason as Penry’s. Like Penry’s evidence, Cole’s evidence of childhood deprivation and lack of 

self-control did not rebut either deliberateness or future 

dangerousness but was intended to provide the jury with 

an entirely different reason for not imposing a death 

sentence. Second, the judge’s assumption that it would be

appropriate to look at “other testimony in the record” to

determine whether the jury could give mitigating effect to

the testimony of Cole’s mother and aunt is neither reasonable nor supported by the Penry opinion. App. 160. Third, 

the fact that the jury could give mitigating effect to some 

of the experts’ testimony, namely, their predictions that 

Cole could be expected to become less dangerous as he

aged, provides no support for the conclusion that the jury

understood it could give such effect to other portions of the

experts’ testimony or that of other witnesses. In sum, the 

judge ignored our entire line of cases establishing the

importance of allowing juries to give meaningful effect to 

any mitigating evidence providing a basis for a sentence of 

life rather than death. His recommendation to the CCA 

was therefore unsupported by either the text or the reasoning in Penry I. 

—————— 

instructions it is given, but also as a result of prosecutorial argument 

dictating that such consideration is forbidden. See Part VI, infra. 
Cite as: 550 U. S. ____ (2007) 25 

Opinion of the Court 

VI 

The same principles originally set forth in earlier cases

such as Lockett and Eddings have been articulated explicitly by our later cases, which explained that the jury must 

be permitted to “consider fully” such mitigating evidence 

and that such consideration “would be meaningless” 

unless the jury not only had such evidence available to it, 

but also was permitted to give that evidence meaningful, 

mitigating effect in imposing the ultimate sentence. Penry 

I, 492 U. S., at 321, 323 (internal quotation marks omitted); Graham, 506 U. S., at 475 (acknowledging that a 

“constitutional defect” has occurred not only when a jury is

“precluded from even considering certain types of mitigating evidence,” but also when “the defendant’s evidence

[i]s placed before the sentencer but the sentencer ha[s]

no reliable means of giving mitigating effect to that

evidence”).

Four of our more recent cases lend support to the conclusion that the CCA’s decision was unsupported by either

the text or the reasoning of Penry I.22 In Johnson v. Texas, 

we held that the Texas special issues allowed adequate

consideration of petitioner’s youth as a mitigating circumstance. Indeed, we thought it “strain[ed] credulity to

suppose that the jury would have viewed the evidence of

petitioner’s youth as outside its effective reach” because its 

relevance was so obvious. 509 U. S., at 368. There is of 

course a vast difference between youth—a universally 

applicable mitigating circumstance that every juror has 

experienced and which necessarily is transient—and the 

—————— 

22Because THE CHIEF JUSTICE’s only concern is with the proper application of AEDPA, he finds it unnecessary to define the rule that he 

thinks post-Penry I cases either did or should have applied. What is 

most relevant under AEDPA, however, is the holdings set forth in 

majority opinions, rather than the views of dissenters who supported a 

different understanding of the law at the time those opinions were 

written. 
26 ABDUL-KABIR v. QUARTERMAN 

Opinion of the Court 

particularized childhood experiences of abuse and neglect

that Penry I and Cole described—which presumably most

jurors have never experienced and which affect each individual in a distinct manner. 

Evidence of youth, moreover, has special relevance to 

the question of future dangerousness. A critical assumption motivating the Court’s decision in Johnson was that 

juries would in fact be able to give mitigating effect to the

evidence, albeit within the confines of the special issues. 

See 509 U. S., at 370 (“If any jurors believed that the 

transient qualities of petitioner’s youth made him less

culpable for the murder, there is no reasonable likelihood 

that those jurors would have deemed themselves foreclosed from considering that in evaluating petitioner’s

future dangerousness”). Prosecutors in some subsequent

cases, however, have undermined this assumption, taking

pains to convince jurors that the law compels them to

disregard the force of evidence offered in mitigation.

Cole’s prosecution is illustrative: the State made jurors

“promise” they would look only at the questions posed by

the special issues, which, according to the prosecutor,

required a juror to “put . . . out of [his] mind” Cole’s mitigating evidence and “just go by the facts.” Supra, at 6. 

Arguments like these are at odds with the Court’s understanding in Johnson that juries could and would reach

mitigating evidence proffered by a defendant. Nothing in 

Johnson forecloses relief in these circumstances. See 509 

U. S., at 369 (“Penry remains the law and must be given a 

fair reading”).

This conclusion derives further support from the fact

that, in Johnson, the Court understood that the defendant’s evidence of youth—including testimony from his 

father that “his son’s actions were due in large part to his

youth,” id., at 368, and counsel’s corresponding arguments

that the defendant could change as he grew older—was 

“readily comprehended as a mitigating factor,” id., at 369, 
Cite as: 550 U. S. ____ (2007) 27 

Opinion of the Court 

in the context of the special issues. The evidence offered 

in this case, however, as well as that offered by the petitioner in Brewer, post, at 2–3, and n.1, is closer in nature 

to that offered by the defendant in Penry I than that at 

issue in Johnson. While the consideration of the defendant’s mitigating evidence of youth in Johnson could 

easily have directed jurors towards a “no” answer with

regard to the question of future dangerousness, a juror

considering Cole’s evidence of childhood neglect and abandonment and possible neurological damage or Brewer’s

evidence of mental illness, substance abuse, and a troubled childhood could feel compelled to provide a “yes” 

answer to the same question, finding himself without a

means for giving meaningful effect to the mitigating qualities of such evidence.23 In such a case, there is a reasonable likelihood that the special issues would preclude that 

juror from giving meaningful consideration to such mitigating evidence, as required by Penry I. See Johnson, 509 

U. S., at 367 (explaining that in Boyde v. California, 494 

U. S. 370, 380 (1990), “we held that a reviewing court 

must determine ‘whether there is a reasonable likelihood 

that the jury has applied the challenged instruction in a 

—————— 

23We came to the same conclusion in Graham, after distinguishing 

the defendant’s mitigating evidence in that case from that offered by 

the defendant in Penry I: 

“The jury was not forbidden to accept the suggestion of Graham’s 

lawyers that his brief spasm of criminal activity in May 1981 was

properly viewed, in light of his youth, his background, and his character, as an aberration that was not likely to be repeated. Even if Graham’s evidence, like Penry’s, had significance beyond the scope of the 

first special issue, it is apparent 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.” 506 U. S., at 475–476. 
28 ABDUL-KABIR v. QUARTERMAN 

Opinion of the Court 

way that prevents the consideration of constitutionally

relevant evidence’”). 

In three later cases, we gave Penry I the “fair reading”

required by Johnson and repudiated several Fifth Circuit

precedents providing the basis for its narrow reading of 

that case. First, in our review of Penry’s resentencing, at

which the judge had supplemented the special issues with 

a nullification instruction, we again concluded that the 

jury had not been provided with an adequate “vehicle for 

expressing its reasoned moral response” to his mitigating 

evidence. Penry v. Johnson, 532 U. S. 782, 797 (2001) 

(Penry II). Indeed, given that the resentencing occurred

after the enactment of AEDPA, we concluded (contrary to

the views of the Fifth Circuit, which had denied Penry a 

COA) that the CCA’s judgment affirming the death sentence was objectively unreasonable. Id., at 803–804. 

Second, and as we have already noted, in Tennard we held 

that the Fifth Circuit’s test for identifying relevant mitigating evidence was incorrect. 542 U. S., at 284. Most 

recently, in Smith v. Texas, 543 U. S. 37 (2004) (per curiam), and again contrary to the views of the Fifth Circuit, 

we held that a nullification instruction that was different 

from the one used in Penry’s second sentencing hearing 

did not foreclose the defendant’s claim that the special

issues had precluded the jury from “expressing a ‘reasoned 

moral response’ to all of the evidence relevant to the defendant’s culpability.” Id., at 46. 

VII 

Our line of cases in this area has long recognized that

before a jury can undertake the grave task of imposing a 

death sentence, it must be allowed to consider a defendant’s moral culpability and decide whether death is an

appropriate punishment for that individual in light of his 

personal history and characteristics and the circumstances 
Cite as: 550 U. S. ____ (2007) 29 

Opinion of the Court 

of the offense. 24 As Chief Justice Burger wrote in Lockett: 

“There is no perfect procedure for deciding in which 

cases governmental authority should be used to impose death. But a statute that prevents the sentencer 

in all capital cases from giving independent mitigating weight to aspects of the defendant’s character and

record and to circumstances of the offense proffered in

mitigation creates the risk that the death penalty will

be imposed in spite of factors which may call for a less 

severe penalty. When the choice is between life and 

death, that risk is unacceptable and incompatible

with the commands of the Eighth and Fourteenth

Amendments.” 438 U. S., at 605. 

Our cases following Lockett have made clear that when the 

jury is not permitted to give meaningful effect or a “reasoned moral response” to a defendant’s mitigating evidence—because it is forbidden from doing so by statute or 

a judicial interpretation of a statute—the sentencing

process is fatally flawed.25 For that reason, our post-Penry 

—————— 

24 In Graham, we acknowledged that Penry I did not “effec[t] a sea 

change in this Court’s view of the constitutionality of the former Texas

death penalty statute.” Graham, 506 U. S., at 474. The reason, of 

course, that this was not the case is because the rule set forth in Penry 

I was merely an application of the settled Lockett-Eddings-Hitchcock 

rule described by Justice O’Connor in her opinions. 25Without making any attempt to explain how the jury in either this

case or in Brewer v. Quarterman, post, p. __, could have given “meaningful effect” or a “reasoned moral response” to either defendant’s 

mitigating evidence, THE CHIEF JUSTICE concludes his dissent by

lamenting the fact that the views shared by Justice O’Connor’s concurrence and the dissenters in Franklin in 1988—and later endorsed in 

Penry I—“actually represented ‘clearly established’ federal law at that 

time.” Post, at 16. To his credit, his concluding sentence does not go so

far as to state that he favors a “tunc pro nunc” rejection of those views, 

an endorsement of the views expressed by the four dissenters in Penry 

I, or even agreement with the Fifth Circuit’s recently rejected test for 

identifying relevant mitigating evidence. See Nelson v. Quarterman, 
30 ABDUL-KABIR v. QUARTERMAN 

Opinion of the Court 

cases are fully consistent with our conclusion that the

judgment of the Court of Appeals in this case must be

reversed. The case is remanded for further proceedings

consistent with this opinion. 

It is so ordered. 

—————— 

472 F. 3d 287, 291–293 (2006) (en banc) (recognizing the “now-defunct”

nature of the Fifth Circuit’s “ ‘constitutional-relevance’ test” postTennard and that a “ ‘full-effect’ ” standard—meaning that “a juror be

able to express his reasoned moral response to evidence that has 

mitigating relevance beyond the scope of the special issues”—was

“clearly established” for purposes of AEDPA in 1994, when Nelson’s

conviction became final). 
_________________ 

_________________ 

Cite as: 550 U. S. ____ (2007) 1 

ROBERTS, C. J., dissenting 

SUPREME COURT OF THE UNITED STATES 

Nos. 05–11284 and 05–11287 

JALIL ABDUL-KABIR, FKA TED CALVIN COLE, 

PETITIONER 

05–11284 v. 

NATHANIEL QUARTERMAN, DIRECTOR, TEXAS 

DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION 

BRENT RAY BREWER, PETITIONER 

05–11287 v. 

NATHANIEL QUARTERMAN, DIRECTOR, TEXAS 

DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION 

ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE FIFTH CIRCUIT 

[April 25, 2007] 

CHIEF JUSTICE ROBERTS, with whom JUSTICE SCALIA, 

JUSTICE THOMAS, and JUSTICE ALITO join, dissenting. 

A jury imposed a sentence of death in each of these 

cases, despite hearing mitigating evidence from the defendants about their troubled backgrounds. The convictions 

and sentences were upheld on direct review. On state 

collateral review, each defendant claimed that the jury

instructions did not allow sufficient consideration of the 

mitigating evidence. This Court had considered similar 

challenges to the same instructions no fewer than five 

times in the years before the state habeas courts considered the challenges at issue here. See Jurek v. Texas, 428 

U. S. 262 (1976); Franklin v. Lynaugh, 487 U. S. 164 

(1988); Penry v. Lynaugh, 492 U. S. 302 (1989) (Penry I); 
2 ABDUL-KABIR v. QUARTERMAN 

ROBERTS, C. J., dissenting 

Graham v. Collins, 506 U. S. 461 (1993); Johnson v. Texas, 

509 U. S. 350 (1993). Four of the cases rejected the defendant’s challenge. Only one—Penry I—upheld it. The 

guidance the Court gave in these five cases on whether the 

jury instructions at issue allowed sufficient consideration 

of mitigating evidence amounted to—it depends. It depends on the particular characteristics of the evidence in a

specific case. The state courts here rejected the claim as

applied to the particular mitigating evidence in these 

cases, and the defendants sought federal habeas review. 

Under the Antiterrorism and Effective Death Penalty

Act of 1996 (AEDPA), however, a state-court decision can

be set aside on federal habeas review only if it is “contrary 

to, or involved an unreasonable application of, clearly 

established Federal law, as determined by the Supreme 

Court of the United States.” 28 U. S. C. §2254(d)(1). 

When this Court considers similar challenges to the same 

jury instructions five separate times, it usually is not

because the applicable legal rules are “clearly established.” The Court today nonetheless picks from the five 

precedents the one that ruled in favor of the defendant— 

Penry I—and anoints that case as the one embodying 

“clearly established Federal law.” In doing so the Court

fails to give any meaningful weight to the two pertinent

precedents subsequent to Penry I—Graham and Johnson— 

even though those cases adopted a more “limited view” of 

Penry I than the Court embraces today. Johnson, supra, 

at 365. Indeed, the reading of Penry I in Graham and 

Johnson prompted every one of the remaining Justices

who had been in the majority in Penry I on the pertinent

question to dissent in Graham and Johnson, on the 

ground that the Court was failing to adhere to Penry I. 

I suppose the Court today is free to ignore the import of 

Graham and Johnson on the question of what Penry I

means, but in 1999 or 2001, respectively—when petitioners were denied collateral relief—the state courts did not 
Cite as: 550 U. S. ____ (2007) 3 

ROBERTS, C. J., dissenting 

have that luxury. They should not be faulted today for 

concluding—exactly as the Graham and Johnson dissenters did—that the Court had cut back significantly on 

Penry I. 

We give ourselves far too much credit in claiming that

our sharply divided, ebbing and flowing decisions in this

area gave rise to “clearly established” federal law. If the 

law were indeed clearly established by our decisions “as of 

the time of the relevant state-court decision,” Williams v. 

Taylor, 529 U. S. 362, 412 (2000), it should not take the 

Court more than a dozen pages of close analysis of plurality, concurring, and even dissenting opinions to explain 

what that “clearly established” law was. Ante, at 10–24. 

When the state courts considered these cases, our precedents did not provide them with “clearly established” law,

but instead a dog’s breakfast of divided, conflicting, and

ever-changing analyses. That is how the Justices on this 

Court viewed the matter, as they shifted from being in the 

majority, plurality, concurrence, or dissent from case to 

case, repeatedly lamenting the failure of their colleagues 

to follow a consistent path. Whatever the law may be

today, the Court’s ruling that ’twas always so—and that

state courts were “objectively unreasonable” not to know

it, Williams, supra, at 409—is utterly revisionist. 

I 

In 1987, Jalil Abdul-Kabir—referred to by his given 

name, Ted Calvin Cole, throughout this opinion, ante, at 1, 

n. 1—was convicted of capital murder after he confessed to

strangling 66-year-old Raymond Richardson with a dog 

leash to steal $20 from him. Among the 21 claims Cole

raised on state collateral review was a challenge under 

Penry I, 492 U. S. 302, to the application of Texas’s special

issue jury instructions. In evaluating Cole’s challenge, the 

state habeas trial court stated: 

“The issue is whether the sentencing jury had been 
4 ABDUL-KABIR v. QUARTERMAN 

ROBERTS, C. J., dissenting 

unable to give effect to [Cole’s] mitigating evidence 

within the confines of the statutory ‘special issues.’

While [Penry I] held that evidence of a defendant’s

mental retardation and abused childhood could not be 

given mitigating effect by a jury within the framework 

of the special issues, the cases that followed such as 

Graham v. Collins, [506 U. S. 461] (1993), Garcia v. 

State, 919 S. W. 2d 370 (1996), Mines v. State, 888 

S. W. 2d 816 (1994), and Zimmerman v. State, 881 

S. W. 2d 360 (1994) held that the mitigating evidence

of alcoholism, drug abuse, bad family background, bipolar disorder, low I.Q., substance abuse, head injury, 

paranoid personality disorder and child abuse were

sufficiently considered under the special issues. The 

issue of whether the mitigating evidence can be sufficiently considered must be determined on a case by

case basis, depending on the nature of the mitigating

evidence offered and whether there exists other testimony in the record that would allow consideration to 

be given.” App. in No. 05–11284, pp. 159–160. 

Applying that standard, the state court concluded that

“[t]he evidence presented at the punishment stage of the 

trial, especially evidence from [Cole’s] expert witnesses, 

provide[d] a basis for the jury to sufficiently consider the 

mitigating evidence.” Id., at 161. The Texas Court of 

Criminal Appeals adopted the trial court’s findings without substantive comment, and denied Cole’s application 

for habeas corpus relief on November 24, 1999. Id., at 

178–179. 

In finding that the state court’s decision was objectively

unreasonable, the Court begins by stating that the principle the state court violated was “firmly established,” based

on “[a] careful review of our jurisprudence in this area.” 

Ante, at 10. The only thing clear about our jurisprudence

on the pertinent question in 1999, however, is that it was 
Cite as: 550 U. S. ____ (2007) 5 

ROBERTS, C. J., dissenting 

unsettled and confused. 

In Jurek, the Court upheld Texas’s use of the special

issues as facially constitutional, with the controlling opinion noting that “the constitutionality of the Texas procedures turns on whether the enumerated questions allow 

consideration of particularized mitigating factors.” 428 

U. S., at 272 (joint opinion of Stewart, Powell, and 

STEVENS, JJ.). In so doing, Jurek left open the possibility 

that some mitigating evidence might not be within the 

reach of the jury under the special issues; other types of 

mitigating evidence, of course, would be. Cf. id., at 272– 

273 (suggesting that the future dangerousness special

issue allowed the jury to consider prior criminal conduct,

age, duress, and whether the defendant was under extreme mental pressure).

The next occasion the Court had to consider mitigating

evidence under the Texas special issues arose in Franklin, 

in which the Court concluded that the defendant’s mitigating evidence of good behavior in prison was taken into

account under the future dangerousness special issue. 487 

U. S., at 178–179 (plurality opinion); id., at 186–187 

(O’Connor, J., concurring in judgment). A plurality of the

Court also rejected the argument that a jury must be 

permitted to give “independent” effect to mitigating evidence—beyond the special issues—concluding that “this

submission is foreclosed by Jurek” and rejecting the dissent’s argument to the contrary. Id., at 179–180, and 

n. 10; see also id., at 199–200 (STEVENS, J., dissenting). 

The Court today places great weight on the opinion by 

Justice O’Connor concurring in the judgment in Franklin, 

an opinion joined only by Justice Blackmun. Ante, at 15– 

18. That separate opinion expressed “doubts” about the

plurality’s view that mitigating evidence need not be given

effect beyond the special issues, noting that if the petitioner in Franklin had introduced evidence not covered by

the special issues, “we would have to decide whether the 
6 ABDUL-KABIR v. QUARTERMAN 

ROBERTS, C. J., dissenting 

jury’s inability to give effect to that evidence amounted to

an Eighth Amendment violation.” 487 U. S., at 183, 185. 

The separate opinion concluded, however, that “this is not

such a case.” Id., at 185. According to the Court today, a

discerning state judge should have seen that federal law 

was “clearly established” on the point by the concurring

and dissenting opinions, not the plurality. Ante, at 15–18. 

 Penry I, decided the following Term, concluded that in 

that case the Texas instructions did not allow the jury to

give mitigating effect to evidence of Penry’s mental retardation and abusive childhood. 492 U. S., at 328, 315 

(“Penry does not . . . dispute that some types of mitigating 

evidence can be fully considered by the sentencer in the

absence of special jury instructions. Instead, Penry argues

that, on the facts of this case, the jury was unable to fully 

consider and give effect to the mitigating evidence . . . in

answering the three special issues” (emphasis added;

citations omitted)). In granting relief, the Court, quoting 

the Franklin concurrence, noted that Penry’s evidence

“‘had relevance to [his] moral culpability beyond the scope 

of the special verdict questions,’” 492 U. S., at 322 (quoting 487 U. S., at 185 (O’Connor, J., concurring in judgment); some alterations deleted), and that it was relevant

to the special issues “only as an aggravating factor.” 492 

U. S., at 323 (emphasis in original). According to the 

Court today, the views of the Franklin concurrence and 

dissent were thus elevated to the opinion of the Court in 

Penry I, again clearly establishing federal law. Ante, at 

17–18, and n. 15. The four dissenters in Penry I complained that the Court’s holding “flatly contradic[ted]” 

Jurek, and that in finding a constitutional violation, the

Court was “throwing away Jurek in the process.” 492 

U. S., at 355, 354 (SCALIA, J., concurring in part and dissenting in part).

A state court looking at our pertinent precedents on the

Texas special issue instructions would next have to con-
Cite as: 550 U. S. ____ (2007) 7 

ROBERTS, C. J., dissenting 

sider the significance of Saffle v. Parks, 494 U. S. 484 

(1990). That case—issued less than nine months after 

Penry I—considered Oklahoma instructions, but extensively analyzed Penry I in doing so. See 494 U. S., at 491– 

492. The Court concluded that the mitigating evidence in

that case could be adequately considered by the jury under 

the instructions given. The four dissenters in Saffle— 

including the author of today’s opinion—complained that

the majority’s discussion of Penry I was “strangely reminiscent” of the position of the Penry I dissenters. 494 

U. S., at 504 (opinion of Brennan, J.). The Saffle dissenters asserted that the majority’s failure to reject the position of the Penry I dissenters “creates considerable ambiguity about which Lockett [v. Ohio, 438 U. S. 586 (1978)] 

claims a federal court may hereafter consider on habeas

corpus review.” 494 U. S., at 504–505. 

In Graham, decided three years later, the Court sought

to clarify the interplay between Jurek, Franklin, and 

Penry I: 

“It seems to us, however, that reading Penry as petitioner urges—and thereby holding that a defendant is

entitled to special instructions whenever he can offer

mitigating evidence that has some arguable relevance

beyond the special issues—would be to require in all

cases that a fourth ‘special issue’ be put to the jury: 

‘“Does any mitigating evidence before you, whether or 

not relevant to the above [three] questions, lead you to

believe that the death penalty should not be imposed?”’ The Franklin plurality rejected precisely this 

contention, finding it irreconcilable with the Court’s 

holding in Jurek, and we affirm that conclusion today.” 506 U. S., at 476–477 (citation omitted; second

emphasis added). 

Thus, in Graham the Court rejected the reading of Franklin and Penry I that the Court today endorses, reasoning 
8 ABDUL-KABIR v. QUARTERMAN 

ROBERTS, C. J., dissenting 

that it would require a new sentencing in every case, and 

would be impossible to square with Jurek.1 

Although the Court today tells us it was clear that the

applicable federal law was established by the Franklin 

concurrence and dissent, and that Penry I had to be read 

in that light, ante, at 17–18, the Court majority in Graham specifically relied instead upon the Franklin plurality

in rejecting the same broad reading of Penry I the Court 

resuscitates today, nunc pro tunc. Graham, supra, at 476– 

477. The dissenters in Graham—including every remaining Member of the Penry I majority—were adamant that 

Penry I should have been controlling in Graham. See, e.g., 

506 U. S., at 507 (opinion of SOUTER, J., joined by Blackmun, STEVENS, and O’Connor, JJ.) (“Our description of 

Penry’s claim applies . . . almost precisely to Graham’s 

claim”); id., at 508 (“[Graham’s] position is identical to 

that of Penry”); id., at 512 (“Penry controls in this respect, 

and we should adhere to it”); id., at 520 (“[T]he case is 

controlled by Penry”). The issue is not whether the majority or the dissenters in Graham were right about how to

read Penry I, but whether it was reasonable for a state 

court in 1999 to read it the way the majority in Graham 

plainly did.

Later the same Term, in Johnson, the Court reaffirmed 

the “limited view of Penry” it had adopted in Graham. 509 

U. S., at 365. Once again the Court majority specifically

relied on the Franklin plurality—not the concurrence and 

—————— 

1 In evaluating the state court’s analysis, the Court criticizes its reliance on Graham because Graham primarily addressed retroactivity 

under Teague v. Lane, 489 U. S. 288 (1989). Ante, at 23. But in considering whether the rule requested was dictated by precedent, Graham of 

course had to evaluate the scope of that precedent—including Penry I— 

and did so extensively. See 506 U. S., at 467–477. Moreover, as explained below, the Court in Johnson v. Texas, 509 U. S. 350, 370–372 

(1993), adopted the same reading of Penry I adopted in Graham, 

without considering the issue under Teague. 
Cite as: 550 U. S. ____ (2007) 9 

ROBERTS, C. J., dissenting 

dissent. See 509 U. S., at 370–371. And once again the

dissenters—including every remaining Member of the 

Penry I majority—lamented the Court’s asserted failure to

adhere to Penry I. 509 U. S., at 385–386 (opinion of 

O’Connor, J., joined by Blackmun, STEVENS, and SOUTER, 

JJ.). The dissent—by the Penry I author—made precisely 

the same point made by the Court today about how to read 

the Franklin concurrence and dissent. 509 U. S., at 385– 

386. The difference, of course, was that in Johnson the 

point was made in dissent. It cannot have been “objectively unreasonable” for a state court, in 1999, to have

been guided by the Johnson majority on this question, 

rather than by the dissent. 

In short, a state court reading our opinions would see an

ongoing debate over the meaning and significance of Penry 

I. That state court would see four dissenters in Graham 

and Johnson—including every remaining Member of the 

Penry I majority—arguing that the Court was failing to

follow or sharply limiting Penry I in those cases. On the 

flip side, the state court would see four dissenters in Penry 

I—every one later joining the majorities in Graham and 

Johnson—suggesting that the Penry I majority departed 

from Jurek. It is in that context that the Court today tells

us that the state courts should have regarded Penry I as 

“clearly established Federal law, as determined by the 

Supreme Court of the United States.” §2254(d)(1). 

The Court asserts that Graham and Johnson did not 

“disturb the basic legal principle” at issue, ante, at 23, and 

that we cite no post-Penry I cases inconsistent with its 

reading of that case, ante, at 17, n. 14. I do not understand how the author of today’s opinion can say that Graham did not disturb the principle of Penry I, however, 

when he joined a dissent in Graham stating that “[Graham’s] position is identical to that of Penry” and that 

Graham’s case “is controlled by Penry.” 506 U. S., at 508, 

520 (opinion of SOUTER, J.) (emphasis added). That would 
10 ABDUL-KABIR v. QUARTERMAN 

ROBERTS, C. J., dissenting 

seem to suggest that Graham was inconsistent with Penry 

I. I do not understand how the author of today’s opinion 

can say that Johnson had no effect on Penry I, when he 

joined a dissent in Johnson stating that the majority

opinion “upset our settled Eighth Amendment jurisprudence.” 509 U. S., at 382 (opinion of O’Connor, J.). Now 

Johnson is dismissed as just an application of “basic legal 

principle[s],” over which Justices can disagree, ante, at 23; 

back then it “upset our settled Eighth Amendment jurisprudence.” And what of Saffle? There the author of today’s opinion joined a dissent claiming that the majority 

was adopting the rule rejected in Penry I. 494 U. S., at 

504 (opinion of Brennan, J.). Again, that would seem to 

suggest inconsistency with Penry I.2

 In fact, Penry I is not even consistent with the reading

the Court ascribes to it—in that case the Court concluded 

that a jury could only view Penry’s mitigating evidence as

aggravating, and thus could not give the evidence any

mitigating effect. 492 U. S., at 323 (Penry’s evidence was

“relevant only as an aggravating factor” (emphasis in 

original)); see also Graham, supra, at 473 (“Although

Penry’s evidence of mental impairment and childhood 

abuse indeed had relevance to the ‘future dangerousness’ 

inquiry, its relevance was aggravating only” (emphasis in

original)). The Court concedes that Cole’s evidence in the 

present case was not purely aggravating, see ante, at 24 

—————— 

2The Court is correct that “[w]hat is most relevant under AEDPA 

. . . is the holdings set forth in majority opinions, rather than the views

of dissenters . . . at the time those opinions were written.” Ante, at 25, 

n. 22. But that must include the majority opinions in all the pertinent

cases, not just the lone one of the bunch that ruled in favor of the 

defendant. Here it must include the subsequent majority opinions in 

Saffle, Graham, and Johnson, as well as in Penry I, and it was not 

objectively unreasonable for a state court to view Saffle, Graham, and 

Johnson the same way today’s author did at the time—or at least to 

conclude that the Court’s current view of Penry I was not as clearly 

established as the Court would have it today. 
Cite as: 550 U. S. ____ (2007) 11 

ROBERTS, C. J., dissenting 

(“[T]he jury could give mitigating effect to some of the

experts’ testimony”), thus drawing into even starker contrast the rule that was established by a fair reading of 

Penry I in 1999 versus the rule the Court today reads 

Penry I to have “clearly established.” 

As might be expected in light of the foregoing, judges

called upon to apply these precedents were confused by

the ambiguity of this Court’s pronouncements. See, e.g., 

Mines v. Texas, 888 S. W. 2d 816, 820 (Tex. Crim. App. 

1994) (Baird, J., concurring) (“The Supreme Court’s holdings in Penry, Graham and Johnson do not provide an

analytical framework to determine when our capital sentencing scheme fails to allow the jury to consider and give

effect to mitigating evidence . . .”); see also Brewer v. 

Dretke, 442 F. 3d 273, 279, n. 16 (CA5 2006) (per curiam)

(remarking, in applying Graham and Penry I, that “[t]here

is no easy way to locate [the defendant] at either pole”). 

Commentators at the time likewise concluded that Graham and Johnson “put a cap on Penry’s principles.” 

Denno, Testing Penry and Its Progeny, 22 Am. J. Crim. L. 

1, 10 (1994) (“In Graham, the Court made clear that it did 

not interpret Penry ‘as effecting a sea change’ in its

evaluation of the constitutionality of the former Texas

death penalty statute . . .”). See also Twenty-Eighth Annual Review of Criminal Procedure, 87 Geo. L. J. 1756, 

1770 (1999) (“The possible reach of Penry has been circumscribed by [Graham] and [Johnson]”).

It is a familiar adage that history is written by the

victors, but it goes too far to claim that the meaning and

scope of Penry I was “clearly established” in 1999, especially in the wake of Graham and Johnson. In applying

AEDPA, we have recognized that “[a] federal court may 

not overrule a state court for simply holding a view different from its own, when the precedent from this Court is, at 

best, ambiguous.” Mitchell v. Esparza, 540 U. S. 12, 17 

(2003) (per curiam); see also Lockyer v. Andrade, 538 U. S. 
12 ABDUL-KABIR v. QUARTERMAN 

ROBERTS, C. J., dissenting 

63, 72–73 (2003) (declining to find federal law “clearly 

established” when “our precedents in [the] area have not 

been a model of clarity”). 

When the state court rejected Cole’s claim, it knew that

mitigating evidence of mental retardation and severe

childhood abuse could not be given effect under the special 

issues, Penry I, 492 U. S., at 328, but that evidence of 

youth and a transient upbringing could be, Graham, 506 

U. S., at 476; Johnson, 509 U. S., at 368. The court concluded that Cole’s mitigating evidence—a troubled childhood and “impulse control” disorder—was more like that

considered in Johnson and Graham than in Penry I. And 

because Cole’s mitigating evidence was not as troubling as

that at issue in Penry I, the state court did not act unreasonably in concluding that the collateral damage of his 

upbringing and impulse control disorder would, like youth

in Johnson, dissipate over time, so that Cole would be less

of a danger in the future. It is irrelevant that the ill effects of Cole’s upbringing and impulse control disorder

might not wear off for some time—there was no suggestion 

in Johnson that the petitioner in that case would become

less dangerous any time soon.

In other words, our precedents—which confirmed that

the permanence of a mitigating feature was highly relevant, and that the correct answer was a case-specific

matter turning on the particular facts—did not provide a

clear answer, because the particular evidence before the 

court fell somewhere between the guideposts established 

by those precedents. As we have recognized, “the range of 

reasonable judgment can depend in part on the nature of 

the relevant rule. . . . [Some] rules are more general, and 

their meaning must emerge in application over the course 

of time.” Yarborough v. Alvarado, 541 U. S. 652, 664 

(2004). See also Brown v. Payton, 544 U. S. 133, 143 

(2005) (reviewing state-court application of Supreme 

Court precedent “to similar but not identical facts” and 
Cite as: 550 U. S. ____ (2007) 13 

ROBERTS, C. J., dissenting 

concluding that “[e]ven on the assumption that its conclusion was incorrect, it was not unreasonable, and is therefore just the type of decision that AEDPA shields on habeas review”).

The state court’s approach to the question was plainly

correct; indeed, we engaged in a similar comparison in 

Graham itself in determining that the evidence presented 

in that case was cognizable under the special issues: 

“Jurek is reasonably read as holding that the circumstance of youth is given constitutionally adequate consideration in deciding the special issues. We see no 

reason to regard the circumstances of Graham’s family background and positive character traits in a different light. 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.” 506 

U. S., at 476. 

The state court thought that Cole’s evidence “more closely 

resemble[d]” Johnson and Graham than Penry I. That 

cannot be said to be “contrary to, or . . . an unreasonable 

application of, clearly established Federal law.” 

§2254(d)(1). See Brown, supra, at 143, 147; Williams, 529 

U. S., at 411. 

The Court further holds that the jury instructions did

not permit Cole’s evidence to have “mitigating force beyond the scope of the special issues,” ante, at 21, as it now 

reads Penry I to require. At the time the state court ruled, 

however, Graham and Johnson, decided after Penry I, had 

expressly rejected the notion that a jury must “be able to 

give effect to mitigating evidence in every conceivable

manner in which the evidence might be relevant,” so long 

as the jury could consider “in some manner all of a defendant’s relevant mitigating evidence.” Johnson, supra, at 
14 ABDUL-KABIR v. QUARTERMAN 

ROBERTS, C. J., dissenting 

372–373. The state court found that Cole’s mitigating 

evidence could be “sufficiently consider[ed]” by the jury

“within the confines of the statutory ‘special issues,’” App.

in No. 05–11284, at 161, 159, a holding consistent with

this Court’s precedents as of 1999—and certainly not 

contrary to clearly established federal law. 

In reaching today’s result, the Court also takes advantage of eight years of hindsight and relies on three cases

that postdate the state court’s ruling. Ante, at 28 (citing 

Penry v. Johnson, 532 U. S. 782 (2001) (Penry II), Tennard 

v. Dretke, 542 U. S. 274 (2004), and Smith v. Texas, 543 

U. S. 37 (2004) (per curiam)). What is pertinent under

AEDPA, however, is whether federal law was clearly 

established by our decisions when the state court acted. 

Williams, supra, at 412.3 AEDPA requires state courts to

reasonably apply clearly established federal law. It does 

not require them to have a crystal ball. 

II 

In 1991, petitioner Brent Ray Brewer was convicted of

murder committed during the course of a robbery. Like 

Cole, Brewer claims that the Texas special issues prevented the jury from giving effect to mitigating evidence

that he suffered from depression and had been abused as a 

teenager. The Texas courts rejected these claims on both 

direct and collateral review. 

—————— 

3The Court criticizes this dissent for failing “to define the rule” that 

our post-Penry I cases either did or should have applied. Ante, at 25, n. 

22. But the whole point is that “the rule,” far from being “clearly

established” by our decisions, was—at the very least—unsettled and

confused. Under AEDPA, those defending the finality of a state-court

judgment challenged on federal habeas review do not have to show that

the state-court judgment was consistent with some version of “clearly 

established Federal law” other than that offered by the challenger; 

AEDPA obviously contemplates that there may not be “clearly established Federal law.” The Court’s criticism only underscores how far the 

reasoning employed today strays from AEDPA’s mandate. 
Cite as: 550 U. S. ____ (2007) 15 

ROBERTS, C. J., dissenting 

In evaluating Brewer’s claim, the Court focuses on the 

so-called “two-edged sword” nature of the evidence found 

to be beyond the jury’s reach in Penry I, and concludes 

that Brewer’s mitigating evidence is similarly double 

edged. The state court distinguished Penry I, however, 

stating that “a stay in a mental hospital does not evidence 

a long term mental illness which would affect appellant’s 

ability to conform to the requirements of society,” App. in

No. 05–11287, p. 141 (internal quotation marks omitted), 

in contrast to Penry’s “organic brain disorder . . . which

made it impossible for him to appreciate the wrongfulness

of his conduct or to conform his conduct to the law,” Penry 

I, 492 U. S., at 309. The state court determined that the 

nature of Brewer’s evidence allowed the jury to find that 

he would not be a future danger, whereas Penry’s did not. 

The Court rejects this distinction, noting that while

Brewer’s mitigating evidence may have been less compelling than Penry’s, “that difference does not provide an 

acceptable justification for refusing to apply the reasoning 

in Penry I to this case.” Ante, at 6, and n. 5. This misses 

the point. The state court’s distinction goes not to the

relative strength of the mitigating evidence, but rather its

character—an episodic rather than permanent mental 

disorder. As discussed in the context of Cole, see supra, at 

12, the distinction was not a “refus[al] to apply the reasoning in Penry I,” ante, at 6, but rather an application of 

Penry I that can hardly be said to be “objectively unreasonable” based on this Court’s decisions as of 2001. Indeed, in considering future dangerousness, it is difficult to

imagine a more pertinent distinction than whether a

mental condition is or is not permanent. 

The Court concedes that “[t]he transient quality of

[Brewer’s] mitigating evidence may make it more likely to 

fall in part within the ambit of the special issues,” and yet

still finds the state court’s decision unreasonable because 

the evidence may have had relevance beyond the special 
16 ABDUL-KABIR v. QUARTERMAN 

ROBERTS, C. J., dissenting 

issues. Ante, at 7. As in Cole’s case, this conclusion 

squarely conflicts with the Court’s rejection in Graham of 

the proposition that “a defendant is entitled to special

instructions whenever he can offer mitigating evidence

that has some arguable relevance beyond the special 

issues.” 506 U. S., at 476 (emphasis in original). That 

rejection was confirmed in Johnson, see 509 U. S., at 372– 

373 (rejecting a rule that “would require that a jury be 

able to give effect to mitigating evidence in every conceivable manner in which the evidence might be relevant” in

favor of the rule “that a jury be able to consider in some

manner all of a defendant’s relevant mitigating evidence”). 

Once again, the Court rejects the state court’s reasonable 

reading of existing cases in favor of its own revisionist 

reading of this Court’s doctrine, heavily informed by subsequent decisions that the state court had no means to 

predict. 

III 

In AEDPA, Congress “work[ed] substantial changes” to

the power of federal courts to grant habeas corpus relief. 

Felker v. Turpin, 518 U. S. 651, 654 (1996). In today’s

decisions, the Court trivializes AEDPA’s requirements and

overturns decades-old sentences on the ground that they

were contrary to clearly established federal law at the 

time—even though the same Justices who form the majority today were complaining at that time that this Court 

was changing that “clearly established” law. 

Still, perhaps there is no reason to be unduly glum. 

After all, today the author of a dissent issued in 1988 

writes two majority opinions concluding that the views

expressed in that dissent actually represented “clearly

established” federal law at that time. So there is hope yet 

for the views expressed in this dissent, not simply down

the road, but tunc pro nunc. Encouraged by the majority’s

determination that the future can change the past, I respectfully dissent. 
_________________ 

_________________ 

Cite as: 550 U. S. ____ (2007) 1 

SCALIA, J., dissenting 

SUPREME COURT OF THE UNITED STATES 

Nos. 05–11284 and 05–11287 

JALIL ABDUL-KABIR, FKA TED CALVIN COLE, 

PETITIONER 

05–11284 v. 

NATHANIEL QUARTERMAN, DIRECTOR, TEXAS 

DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION 

BRENT RAY BREWER, PETITIONER 

05–11287 v. 

NATHANIEL QUARTERMAN, DIRECTOR, TEXAS 

DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION 

ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE FIFTH CIRCUIT 

[April 25, 2007] 

JUSTICE SCALIA, with whom JUSTICE THOMAS joins, and 

with whom JUSTICE ALITO joins as to Part I, dissenting. 

I remain of the view “that limiting a jury’s discretion to

consider all mitigating evidence does not violate the 

Eighth Amendment.” Ayers v. Belmontes, 549 U. S. ___, 

___ (2006) (slip op., at 1) (SCALIA, J., concurring) (citing 

Walton v. Arizona, 497 U. S. 639, 673 (1990) (SCALIA, J., 

concurring in part and concurring in judgment)). 

I 

But even under this Court’s precedents to the contrary,

the state-court decisions in these two cases were hardly

objectively unreasonable under the Antiterrorism and

Effective Death Penalty Act of 1996, as THE CHIEF 

JUSTICE’s dissenting opinion demonstrates. That is all 
2 ABDUL-KABIR v. QUARTERMAN 

SCALIA, J., dissenting 

which is needful to demonstrate the error of today’s judgments. The full truth is worse than that, however. There 

was in fact clearly established law that governed these

cases, and it favored the State. When the state courts 

rendered their decisions, Johnson v. Texas, 509 U. S. 350 

(1993), was this Court’s most recent pronouncement on the

Texas special issues. And in that case, the Court unambiguously drew back from the broader implications of its 

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

(Penry I). Reiterating what it had recently said in Graham v. Collins, 506 U. S. 461, 475 (1993), the Court made

clear that “‘[i]n Penry, the defendant’s evidence was 

placed before the sentencer but the sentencer had no 

reliable means of giving mitigating effect to that evidence.’” Johnson, supra, at 366 (emphasis added). Penry 

I, said Johnson, stood for the proposition that habeas

relief was appropriate where jurors had been unable to 

give any mitigating effect to the evidence at issue. 509 

U. S., at 369; see also Graham, supra, at 475. Penry I in 

no way meant to imply, Johnson warned, “that a jury

[must] be able to give effect to mitigating evidence in every 

conceivable manner in which the evidence might be relevant.” 509 U. S., at 372 (emphasis added). Johnson thus 

established, in no uncertain terms, that jurors need only 

“be able to consider in some manner all of a defendant’s 

relevant mitigating evidence.” Ibid. (emphasis added); see

generally id., at 372–373. 

The dissenters in Johnson very much disagreed with 

that analysis. They read Penry I for the more expansive

proposition that “the Texas special issues violated the 

Eighth Amendment to the extent they prevented the jury

from giving full consideration and effect to a defendant’s 

relevant mitigating evidence.” 509 U. S., at 385 (opinion 

of O’Connor, J.) (citing Penry I, supra; emphasis added

and deleted). “[H]aving some relevance to [a special]

issue,” the dissent said, “was not sufficient.” 509 U. S., at 
Cite as: 550 U. S. ____ (2007) 3 

SCALIA, J., dissenting 

385. And because youth (the mitigating feature in Johnson) had obvious relevance beyond the special issues, an 

additional instruction was needed. Id., at 375. The differences between the Johnson majority and dissenters could

not have been more pronounced.

Today the Court overrules Johnson sub silentio, and 

reinstates the “full effect” interpretation of Penry I. For as 

THE CHIEF JUSTICE explains, ante, at 12, 15 (dissenting 

opinion), it was not objectively unreasonable for the state 

courts to conclude that the ill effects of petitioners’ mental

illnesses and difficult childhoods would wear off in due 

time, allowing the jury to give that mitigating evidence 

some effect through the future dangerousness instruction—just as could be done for the mitigating factor of 

youth in Johnson. The Court nonetheless reverses these 

sentences because the juries were unable to give effect to

“any independent concern” (independent, that is, of the 

Texas special issues) that the defendants “may not be 

deserving of a death sentence,” Brewer, ante, at 6, or to 

consider the evidence’s “relevance to the defendant’s moral 

culpability beyond the scope of the special verdict questions,” id., at 7 (internal quotation marks omitted). The 

Court does not acknowledge that it is overruling Johnson, 

but makes the Court of Appeals the scapegoat for its 

change of heart.

The Fifth Circuit in both of these cases relied heavily on 

Johnson when denying relief. See Cole v. Dretke, 418 

F. 3d 494, 505 (2005); Brewer v. Dretke, 442 F. 3d 273, 278, 

281 (2006) (relying on Cole). How does the Court manage

to distinguish it? The Court tries two main lines of argument. First, the Court explains: 

“A critical assumption motivating the Court’s decision 

in Johnson was that juries would in fact be able to 

give mitigating effect to the evidence, albeit within 

the confines of the special issues. . . . Prosecutors in 
4 ABDUL-KABIR v. QUARTERMAN 

SCALIA, J., dissenting 

some subsequent cases, however, have undermined 

this assumption, taking pains to convince jurors that

the law compels them to disregard the force of evidence offered in mitigation.” Abdul-Kabir, ante, at 26. 

Because Johnson’s “critical assumption” has now been

“undermined,” the Court says, Johnson cannot be said to 

“foreclos[e] relief in these circumstances.” Abdul-Kabir, 

ante, at 26. 

This attempt to “distinguish” Johnson wilts under even 

the mildest scrutiny. Since when does this Court craft 

constitutional rules that depend on the beneficence of the

prosecutor? (Never mind that this “critical assumption” of 

Johnson was not so critical as to be mentioned in the 

case.) And more importantly, how can prosecutorial style 

have any bearing on whether the Eighth Amendment

requires a jury to be able to give “some effect,” as opposed 

to “full effect,” to a defendant’s mitigating evidence? It is 

of course true that a prosecutor’s arguments may be relevant evidence in the final analysis of whether a capital 

trial has met the “some effect” test. But it has absolutely 

no relevance to which test is selected in the first place.*

Second, the Court explains that “the consideration of the 

defendant’s mitigating evidence of youth in Johnson could 

easily have directed jurors towards a ‘no’ answer with

regard to the question of future dangerousness,” whereas 

a juror considering petitioners’ mitigating evidence “could 

feel compelled to provide a ‘yes’ answer to the same question.” Abdul-Kabir, ante, at 27. But it is quite apparent 

that jurors considering youth in Johnson could also have 

—————— 

*Relatedly, the Court thinks Johnson distinguishable because jurors

have “experienced” youth but “have never experienced” the “particularized childhood experiences of abuse and neglect” at issue here. AbdulKabir, ante, at 25–26. It is again quite impossible to understand, 

however, how that can have any bearing upon whether “some effect” or

“full effect” is the required test. 
Cite as: 550 U. S. ____ (2007) 5 

SCALIA, J., dissenting 

“fe[lt] compelled to provide a ‘yes’ answer” to the future

dangerousness question. While one can believe that “the 

impetuousness and recklessness that may dominate in

younger years can subside,” Johnson, 509 U. S., at 368, 

one can also believe that a person who kills even in his 

younger years is fundamentally depraved, and more prone 

to a life of violent crime. Johnson itself explicitly recognized this point, denying relief despite “the fact that a 

juror might view the evidence of youth as aggravating, as

opposed to mitigating.” Ibid. 

As the Court’s opinion effectively admits, nothing of a

legal nature has changed since Johnson. What has 

changed are the moral sensibilities of the majority of the 

Court. For those in Texas who have already received the 

ultimate punishment, this judicial moral awakening 

comes too late. Johnson was the law, until today. And in 

the almost 15 years in-between, the Court today tells us, 

state and lower federal courts in countless appeals, and

this Court in numerous denials of petitions for writ of

certiorari, have erroneously relied on Johnson to allow the 

condemned to be taken to the death chamber. See, e.g., 

Robison v. Johnson, 151 F. 3d 256, 269 (CA5 1998) (denying petition for rehearing), cert. denied, 526 U. S. 1100

(1999) (petitioner executed Jan. 21, 2000); Motley v. 

Collins, 18 F. 3d 1223, 1233–1235 (CA5), cert. denied 

sub nom. Motley v. Scott, 513 U. S. 960 (1994) (petitioner 

executed Feb. 7, 1995). 

II 

The individuals duly tried and executed between Johnson and today’s decisions were not, in my view (my view at

the time of Johnson, and my view now), entitled to federal

judicial invalidation of their state-imposed sentences. 

That is because in my view the meaning of the Eighth 

Amendment is to be determined not by the moral perceptions of the Justices du jour, but by the understanding of 
6 ABDUL-KABIR v. QUARTERMAN 

SCALIA, J., dissenting 

the American people who adopted it—which understanding did not remotely include any requirement that a capital jury be permitted to consider all mitigating factors. If, 

however, a majority of the Justices are going to govern us

by their moral perceptions, in this area at least they ought

to get their moral perceptions right the first time.

Whether one regards improvised death-is-different jurisprudence with disdain or with approval, no one can be at

ease with the stark reality that this Court’s vacillating 

pronouncements have produced grossly inequitable treatment of those on death row. Relief from sentence of death 

because of the jury’s inability to give “full effect” to all 

mitigating factors has been made available only to those

who have managed to drag out their habeas proceedings

until today. This is not justice. It is caprice.