REVISED, July 12, 2000

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

___________________________

No. 99-20868

___________________________

JOHNNY PAUL PENRY

Petitioner-Appellant,

VERSUS

GARY L. JOHNSON, Director, Texas Department of Criminal Justice,

Institutional Division,

Respondent-Appellee.

___________________________________________________

Appeal from the United States District Court

for the Southern District of Texas, Houston Division

___________________________________________________ June 20, 2000

Before DAVIS, EMILIO M. GARZA, and DENNIS, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

Penry filed a motion for a certificate of appealability (COA)

in this § 2254 capital habeas proceeding alleging various

constitutional violations. For the reasons that follow, we deny

his motion.

I

Penry was convicted of capital murder and sentenced to death

in Texas state court for the rape and murder of Pamela Carpenter.

Penry raped Carpenter and stabbed her with a pair of scissors. He

had met her several weeks earlier while helping to install1 Penry v. Lynaugh , 492 U.S. 302, 109 S.Ct. 2934 (1989) (“ Penry I ”).

2 Penry I , 492 U.S. at 320; 109 S.Ct. at 2947.

3 Penry v. State , 903 S.W.2d 715 (Tex. Crim. App. 1995).

2 appliances in her home. Penry matched the description Carpenter

gave of her attacker befo re she died. After being given his

Miranda warnings, Penry gave an oral confession and later a signed

confession to the rape and murder. At trial, Penry offered

mitigating evidence that he was mentally retarded and abused as a

child. He was convicted and sentenced to death. The United States

Supreme Court granted federal habeas relief and vacated his

sentence, holding that P enry’s rights were violated by jury

instructions the trial court gave at the punishment phase of his

trial. 1 The court found that none of the three special statutory

questions provided to the jury, under Texas law, allowed the jury

to give effect to Penry’s mitigating evidence. “The jury was never

instructed that it could consider the evidence offered by Penry as

m itigating evidence and that it could give mitigating effect to

that evidence.” 2

In the second trial, the tria l court followed the Texas

statutory scheme and gave the jury the same three special questions

it had given the jury in the first trial. However, the judge also

provided supplemental instructions directing the jury to consider

any other relevant mitigating evidence and explained how to give

effect to that evidence. Penry was again convicted of capital

murder and sentenced to death. The sentence was again affirmed on

direct appeal 3 and state ha beas relief was denied. The district4 28 U.S.C. § 2253(c)(2); Slack v. McDaniel

, 120 S.Ct. 1595, 1603 (2000);

United States v. Kimler , 150 F.3d 429, 431 (5 th Cir. 1998).

5 Miller v. Johnson ,200 F.3d 274, 280 (5 th Cir. 2000) (quoting Barefoot v.

Estelle

, 463 U.S. 880, 893 n.4, 103 S.Ct. 3383, 3394 n.4 (1983)); H icks v.

Johnson

, 186 F.3d 634, 636 (5 th Cir. 1999), cert denied 120 S.Ct. 976 (2000); see

also Slack

, 120 S.Ct. at 1603-4 ( quoting Barefoot v. Estelle

, 463 U.S. 880, 893

and n. 4, 103 S.Ct. 3383).

6 Lamb v. Johnson

, 179 F.3d 352, 356 (5 th Cir. 1999), cert denied 120 S.Ct.

522 (1999).

7 Id

.

3 court also denied Penry’s application for a COA. Penry now seeks

a COA from this court. We granted Penry’s motion for a stay of

execution in order to consider his motion for a COA.

II

A COA may only issue if the petitioner makes a “substantial

showing of the denial of a constitutional right.” 4 This burden can

be met if the issues presented “are debatable among jurists of

reason; ...a court could resolve the issues in a different manner; or

...the questions are adequate to deserve encouragement to proceed

further.” 5

A death sentence alone does not justify the automatic issuance

of a COA, although it is a proper consideration. 6 Any doubts as to

whether the COA should issue are to be resolved in the petitioner’s

favor. 7

Penry’s petition was filed after the enactment of the

Antiterrorism and Effective Death Penalty Act (AEDPA). Thus, for

questions of law or mixed questions of law and fact adjudicated on

the merits in state court, we may grant federal habeas relief under

28 U.S.C. § 2254(d)(1) only if the state court decision “was

contrary to, or involved an unreaso nable application of, clearly8 See Miller , 200 F.3d at 280-81.

9 Williams v. Taylor

,.

10 Id

.

11 Id

.

12 492 U.S. 302, 109 S.Ct. 2934 (1989)

.

4 established [Supreme Court precedent].” 8 A state court decision is

“contrary to” Supreme Court precedent if: (1) the st ate court’s

conclusion is “opposite to that reached by [the Supreme Court] on

a question of law” or (2) the “state court confronts facts that are

materially indistinguishable from a relevant Supreme Court

precedent” and arrives at an opposite result. 9 A state court

unreasonab ly applies Supreme Court precedent if: (1) it

unreasonably applies the correct legal rule to the facts of a

particular case or (2) it “unreasonably extends a legal principle

from [Supreme Court] precedent to a new context where it should not

apply or unreasonably refuses to extend that principle to a new

context where it should apply.” 1 0 In deciding whether a state

court’s application was unreasonable, this court considers whether

th e application was “objectively unreasonable.” 1 1 We now turn to

Penry’s specific arguments on appeal.

III

Penry first argues that the jury instructions given during the

punishmen t phase of his trial did not allow the jury to consider

and give effect to mitigating evidence regarding his alleged mental

retardation and severe child abuse; thus, the instructions violated

the Supreme Court’s directive in Penry v. Lynaugh 12 (“ Penry I ”)

.

Penry explains that jurors could only give effect to his mitigating13 The three questions were: 1. Was the conduct of the defendant that

caused the death of the deceased committed deliberately and with the reasonable

expectation that the death of the deceas ed or another would result? 2. Is

there a probability that the defendant would commit criminal acts of violence

that would constitute a continuing threat to society? 3. Was the conduct of the

defendant in killing the deceased unreasonable in response to the provocation,

if any, by the deceased? Since Penry , the statute has been revised to add a

fourth question concerning mitigation.

5 evidence, as the Supreme Court required in Penry I , and grant him

a life sentence if they found that the ev idence fit under one of

the th ree special questions required by Texas law. 1 3 In P enry I

,

Penry’s federal habeas challenge to his first trial and conviction,

the Supreme Court found that, under the trial court’s instruction,

none of the three special statutory questions allowed the jury to

give effect to Penry’s mitigating evidence. At Penry’s retrial,

however, the trial court supplemented the instruction it gave in

Penry I

. The court instructed the jury to consider any mitigating

circumstances supported by the evidence. The instruction stated,

in part:

[W]hen you deliberate on the questions posed in

the special issues, you are to consider

mitigating circumstances, if any, supported by the

evidence.... A mitigating circumstance may include,

but is not limited to, any aspect of the defendant’s

character and record or circumstances of the crime

which you believe could make a death sentence

inappropriate in this case. If you find...any

mitigating circumstances...you must decide how much

weight they deserve, if any, and...give effect and

consideration to them in assessing the defendant’s

personal culpability at the time you answer the

special issue. If you determine, when giving

effect to the mitigating evidence, if any, that a

life sentence, as reflected by a negative finding to

the issue under consideration, rather than a death

sentence, is an appropriate response to the

personal culpability of the defendant, a negative

finding should be given to one of the special issues.14 Penry v. State , 903 S.W.2d 715, 765 (Tex. Crim. App. 1995).

15 Penry I ,492 U.S. at 320, 109 S.Ct. at 2947.

6 Penry correctly contends that the instruction still required

t he jury to give a negative answer to one of the three special

issues in order for Penry to receive a life sentence. Penry argues

that because childhood abuse and mental retardation do not

necessarily fit within the scope of any of the special issues,

this instruction did not allow the jury to give effect to these

mitigating circ umstances. However, on direct appeal, the Texas

Court of Criminal Appeals found that the instruction satisfied the

r equirements of Penry I and allowed the jury to give effect t o

those mitigating circumstances. 14

We agree with the district court that the Texas Court of

Crimina l Appeals’s holding that the challenged instruction was

constitutional was n o t an unreasonable application of clearly

established law, namely Penry I

. The instruction directed the jury

to consider and give effect to any mitigating circumstances

supported by the evidence by answering “no” to one of the special

issues if they felt a life sentence was appropriate. This

instruction satisfied the deficiency in the tri al court’s

instruction identified in Penry I : “[t]he jury was never

instructed that it could consider the evidence offered by Penry as

mitigating evidence and that it could give mitigat ing effect to

that evidence in imposing sentence.” 15

We are not writing on a clean slate on this issue. This Court16 200 F.3d 274

. 17 139 F.3d 191 (5 th Cir. 1997), cert denied 119 S.Ct. 418 (1998).

18 200 F.3d at 290.

19 Miller , 200 F.3d at 290.

7 approved identical jury instructions on this point in Miller 16 and

Emery v. Johnson

. 17 In M iller

, we concluded that th e defendant

failed to show that the same instructions given by the trial court

in this case violated Penry I . We rejected the argument that the

jury was prevented from considering the mitigating evidence

. 18

Miller’s jury, unlike Penry’s, was instructed

that it should consider mitigating evidence

when deliberating on the special

issues....[It] was instructed that if it

determined when giving effect to the

mitigating evidence, if any, that a life

sentence rather than a deat h sentence was an

appropriate response to Miller’s personal

culpability, a negative finding should be

given to the special issue under

consideration. 19

In the alternative, Penry argues that the jury charge was a

“nullification instruction” and was therefore unconstitutional

insofar as it instructed jurors to violate their oaths by rendering

an untruthful answer to one of the special issues if they wished to

give effect to the mitigating evidence presented in this case. We

disagree. The jury was not told to disregard the law; rather, it

was instructed on how to obey the law, as explained by the Supreme

Court in Penry I

.

IV

Next, Penry argues that the admission of certain psychiatric

testimony and evidence offered by the state at trial violated his

Fifth and Sixth Amendment rights.20 451 U.S. 454, 101 S.Ct. 1866 (1981). Estelle held that the defendant’s

Fifth Amendment right against compelled self-incrimination was violated because

he was not told that any statements made during his competency exam could be used

against him at the punishment phase on the issue of future dangerousness.

21 483 U.S. 402, 107 S.Ct. 2906 (1987).

8 A.

Penry’s Fifth Amendment challenge involves three categories of

psychiatric testimony and evidence presented by the state: 1. the

testimony of Dr. Fason admitted during the guilt/innocence phase of

trial; 2. the testimony of Dr. Quijano admitted during the

punishment phase of trial; an d 3. the report of Dr. Peebles

describing a court-ordered examination of Penry, which was admitted

at the punishment phase of trial.

1.

Penry’s primary challenge is to the testimony of Dr. Fason.

Penry contends that Fason’s testimony was based on h is courtordered competency examination of Penry, and that the state’s use

of the testimony to argue future dangerousness during the

punishment phase violated Penry’s rights under Estelle v. Smith

. 20

More particularly, Penry argues that his Fifth Amendment privilege

against compelled self-incrimination was violated bec ause he was

not advised before Dr. Fason’s examination of his right to remain

silent and that his statements could be used ag ainst him at the

sentencing proceeding.

On direct appeal, the Texas Co urt of Criminal Appeals found

that Dr. Fason’s testimony fe ll within the B uchanan v. Kentucky 21

exception to Estelle

. Under B uchanan

, if a defendant presents9

psychiatr ic evidence, then the prosecution may present rebuttal

psychiatric evidence without violating the Fifth Amendment.

Penry contends that, as applied to this case, proper rebuttal

evidence und er Buchanan is limited to evidence tending to prove

that Penry is not mentally retarded and that the state’s evidence

went beyond that scope. After a careful review of the record, we

find that Fason’s testimony did fall within the Buchanan exception.

At the guilt/innocence phase of trial, Penry offered various

psychological r ecords, including reports of his performance on a

number of psychological and IQ tests. The records also included

observations of his emotional status and social beha vior. As

demonstrated by the closing argument of Penry’s attorney, one

reason these records were introduced was to lay a predicate for an

argument that Penry’s confessions were not truly voluntary because

Penry is mentally retarded and, thus, submissive to authority

figures. The evidence was also offered to support Penry’s argument

that his mental retardation mad e him less likely to act with the

intent required for capital murder.

Dr. Fason’s testimony was introduced to rebut these arguments.

Fason testified that Penry had an antisocial personality disorder.

He explained how that condition could affect Penry’s IQ scores, and

that it was possible that Penry was not mentally retarded. Also,

he testified that someone with an antisocial personality disorder

would usually not be easily led by others and would likely

disrespect and rebel against authority. Fason did not discuss any

statements made by Penry during Fason’s examination, except whether22 See Vardas v. Estelle

, 715 F.2d 206, 209-10 (5 th Cir. 1983) (finding no

violation of defendant’s Fifth Amendment privilege because state psychiatrists’

testimony was proper as rebuttal to defendant’s insanity defense; psychiatrists

testified that defendant was not insane, but instead was a sociopath.).

10 Penry was able to identify hi s attorney at the interview. We

disagree with Penry’s characterization of Fason’s testimony as a

“sham rebuttal” by the state in order to introduce to the jury the

idea that Penry was a “psychopath.” Penry’s defense centered

around his diminished capacity

-- his alleged mental retardation at

the time of the offense

-- and the idea that his ment al status

rendered his confessions involuntary. Therefore, we conclude that

the Court of Criminal Appeals’ determination that Fason’s testimony

was proper rebuttal under Buchanan is neither contrary to nor an

unreasonable application of clearly established federal law. 22

2.

In addition to his challenge t o Dr. Fason’s guilt phase

testimony, Penry also challenges the court’s admiss ion, at the

punishment phase, of the testimony of Dr. Quijano and the report of

Dr. Peebles as violating Estelle

.

At the punishment p hase, Penry called various relatives and

neighbors who testified that they believed Penry was mentally

retarded and abused as a child. He also called Dr. Randall Price,

who had reviewed certain portions of Penry’s medica l records and

administered various psychological tests to Penry. Dr. Price

concluded that Penry had a brain impairment and was mentally

retarded, and that the mental retardation could have influenced his

involvement in criminal activity. Although he admitted that Penry23 See Williams v. Lynaugh

, 809 F.2d 1063, 1068 (5 th Cir. 1987) (finding no

factual basis for Fifth Amendment violation where state psychologist’s testimony

on future dangerousness was not based on his interview with the defendant.) S ee

also Hughes v. Johnson

, 191 F.3d 607, 616-17 (5 th Cir. 1999) (finding reasonable

a state court’s conclusion that psychiatrist’s testimony did not violate Estelle

, despite his having conducted a prio r improper interview, because it did not

influ ence his testimony; also rejecting idea that “taint” of prior improper

interview created absolute bar to any expre ssion of opinion by that

psychiatrist); cf. Flores v. Johnson

, 2000 WL 426212, at *1, * 7

- *13 (5 th Cir.

April 20, 2000) (Emilio M. Garza, J., specially concurring) (following but

questioning Supreme Court authority allowing psychiatric testimony o n future

dangerousness deduced without examining the defendant).

11 had an antisocial history, he stated that Penry “looks more like

people with brain damage...than those with antisocial personality.”

In rebuttal, the state called Doctors Quijano and Samenow and

introduced into evidence a number of Penry’s mental health records.

Dr. Quijano conducted a court-ordered competency examin ation of

Penry. He testified that Penry had an antisocial personality

disorder which made him more likely to be violent in the future.

However, he testified that he based his opinion only on Penry’s

medical records including evaluations by others, and not on his own

examination of Penry. Thus, the Texas Court of Criminal Appeals

found no Fifth Amendment violation. This finding was not contrary

to, nor an unreasonable application of, clearly established federal

law. 23

The report of Dr. Peebles was admitted into evidence during

the punishment phase, and was based on Dr. Peebles’s 1977

examination of Penry prior to his trial on an unrelated rape

charge. The report determined that Penry would be dangerous in the

future if released. At the time of Dr. Peebles’s examination,

Penry was not yet in custod y on the instant capital charge and,

thus, c ould not have been warned about the potential use of his24 Penry

, 903 S.W.2d. at 759-60; see Ne lson v. State , 848 S.W.2d 126, 135

(Tex. Crim. App. 1992); Estelle

, 451 U.S. at 467-68, 101 S.Ct. at 1875-76 (noting

that the defendant there did not initiate the examination and was not faced with

a person acting solely in his interest).

25 See Buchanan v. Kentucky

, 483 U.S. 402, 422-23, 107 S.Ct. 2906, 2917-18

(1987) (finding that “if a defendant requests [the psychiatric] evaluation o r

presents psychiatric evidence...the prosecution may rebut this presentation with

evidence from the reports of the examination that the defendant requested. The

defendant would have no Fifth Amendment privilege against the in troduction of

this psychiatric testimony by th e prosecution.”). (Emphasis added); s ee also

Schneider v. Lynaugh

, 835 F.2d 570, 577 (5 th Cir. 1988) (finding that, under

Buchanan

, the fact that defendant requested the competency examination militated

against the defendant’s assertion of the Fifth Amendment privilege, particularly

when defendant had also introduced psychological evidence.).

26 492 U.S. 680, 681, 109 S.Ct. 3146, 3148 (1989) ( quoting Estelle

, 451 U.S.

at 471, 101 S.Ct. at 1877).

12 statements at the punishment phase of the capital trial. The Texas

Court of Criminal Appeals found no Fifth Amendment violation

because Penry’s attorney had requested the examination; thus, Dr.

Peebles was acting as an agent of the defense, not of the state in

conducting his examination. 24 W e cannot say that the court’s

conclusion was unreasonable or contrary to Suprem e Court

precedent. 25

B.

Penry also argues that his Sixth Amendment right to effective

assistance of counsel was violated by the use of testimony on

future dangerousness from Doctors Quijano and Fason because Penry

and his counsel were told that their examinations of him were

solely for the purpose of determining competency. Under P owell v.

T exas , “once a capital defendant is formally charged, the Sixth

Amendment r ight to counsel precludes such an examination without

first notifying counsel that ‘the psychiatric examina tion [will]

encompass the issue of their client’s future dangerousness.’” 26 The

Texas Court of Criminal Appeals concluded that Penry’s attorney was27 Penry , 903 S.W.2d at 758.

28 Id . at 759, n. 46.

13 “on notice that if he intended to put on a ‘mental status’ defense,

he would have to anticipate the use of psychological evidence by

the pr osecution in rebuttal.” 2 7 A t a pretrial hearing, the trial

court expressly warned Penry’s counsel that the testimony of

Doctors Fason and Quijano might be admissible at trial if the

defense put on psychiatric evidence. 28 A t trial, Penry argued that

he was mentally retarded; thus, his confessions were involuntary.

He also argued that mental retardation could have been a

contributing ca use of Penry’s violent criminal acts and that his

mental retardation mitigated against the imposition of th e death

penalty. The state was entitled to rebut this evidence by offering

psychiatric evidence that some condition other than mental

retardation was a more sound explanation for Penry’s conduct.

Thus, the Court of Criminal Appeals’s findings are not contrary to,

nor an unreasonable application of, clearly established federal

law.

V

Penry next contends that his execution would violate the

Eighth Amendment, based on his alleged mental retardation and

severe child abuse. First, Penry makes a general argument that

execution of the mentally retarded is a per se vio lation of the

Eighth Amendment. We agree with the district court that this claim

is procedurally barred because Penry did not make the argument in

state court. However, even if this claim was not procedurally29 See Andrews v. Collins

, 21 F.3d 612, 632 (5 th Cir. 1994), cert. denied 513

U.S. 1114, 115 S.Ct. 908 (1995) ( citing Penry I ).

30 Penry , 903 S.W.2d at 766-67.

31 512 U.S. 154, 114 S.Ct. 2187 (1994).

14 barred, it has been rejected by the Supreme Court. 29

Penry also argues that the death penalty would be cruel and

unusual as applied to him personally, because of his mental

retardation and severe childhood abuse. This argument also fails.

On Penry’s direct appeal, the Texas Court of Criminal Appeals

( citing Penry I ) concluded that constitutional requirements were

met because the jury was able to consider and give effect to

Penry’s mitigating evidence before dete r mining that the death

sentence was appropriate. 30 I n Penry’s second trial, he presented

extensive mitigating evidence and the jury was instructed to

consider that evide nce and told how to give it effect. More

significantly, although Penry was the individual before the Supreme

Court in Penry I

, the Court did not suggest that hi s execution

would be unconstitutional based on hi s mental retardation or

childhood abuse. The Texas Court of Criminal Appeals’s conclusion

that Penry’s execution would not violate the Eighth Amendment was

neither contrary to nor an unreasonable a pplication of clearly

established Supreme Court precedent.

VI

Penry makes several other arguments in support of his motion.

He contends that: 1. the trial court violated his rights under

Simmons v. South Carolina 31 by excluding his signed statement

waiving any right to parole, while allowing the state to argue15

future dangerousness; 2. his confessions were taken involuntarily

in violation of the Fifth Amendment; and 3. the jury instructions

at his competency trial were unconstitutionally vague because they

did not define the terms “reasonable,” “rational,” and

“understanding.” We find all of these arguments to be

unpersuasive, essentially for the r easons given by the district

court in its thorough opinion of March 29, 1999.

VII

For the reasons stated above, we deny Penry’s motion for a

certificate of appealability. We also vacate the stay of execution

previously entered by this court.