UNITED STATES COURT OF APPEALS

For the Fifth Circuit

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No. 01-41106

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MICHAEL LYNN BLUE,

Petitioner - Appellee,

VERSUS

JANIE COCKRELL, Director,

Texas Department of Criminal Justice, Institutional Division,

Respondent - Appellant.

Appeal from the United States District Court

for the Eastern District of Texas

July 16, 2002

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

W. EUGENE DAVIS, Circuit Judge:

The respondent appeals from the district court’s grant of habeas corpus in favor of the

defendant, Michael Lynn Blue. Finding no error, we affirm.

I.

Michael Lynn Blue was convicted in June 1989 in Texas state court of capital m urder and

sentenced to death for the murder and robbery of a cab driver. Blue confessed to hitting the decedent

in the head with a claw hammer and taking his wallet. His accomplice stabbed the decedent in the

neck and shot him twice in the head. The two then went to the decedent’s house, where t he

accomplice broke in and retrieved a cash box.

On direct appeal, Blue claimed that punishment phase jury instructions preve nted the j ury2

from acting upon mitigating evidence submitted in his behalf. The Texas Court of Criminal Appeals

affirmed his conviction. That court assumed that Blue was entitled to a supplemental inst ruct ion

under Penry v. Lynaugh

, 492 U.S. 302 (1989)( Penry I ), but held that the supplemental instruction

included in the punishment charge was adequate to allow the jury to give full consideration and effect

to Blue’s mitigating evidence of mental retardati on and physical and sexual abuse through the special

issues. The same issue was raised in Blue’s state habeas co rpus petition. The trial court

recommended denial on the same basis an d the Texas Court of Criminal Appeals adopted the trial

court’s findings of fact and conclusions of law.

Blue then filed this federal habeas corpus petition in which he raised the same issue. On July

31, 2001, the district court granted relief on this claim following the then recently issued decision of

the Supreme Court in Penry v. Johnson

, 532 U.S. 782 (2001)( Penry II ). The district court found that

the jury instruction in Blue’s case “suffer[e d] fro m the same flaws as those which rendered the

instructions in Penry’s case inadequate” and th e jury was precluded from giving effect to Blue’s

mitigating evidence of mental retardati on and childhood abuse. It ordered the respondent to release

Blue fro m custody unless within 120 days the State of Texas either (1) conducts a new

constitutionally permissible sentencing proceeding or (2) vacates Blue’s death sentence and imposes

the automatic life sentence specified by Texas law for a defendant who is convicted of capital murder

but not sentenced to death. The state appeals.

The following relevant mitigating evidence was presented at the punishment phase of the trial.

Blue was in special education classes while in school, which means that he w as at least two y ears

behind his peers in his abilit y to perform. Blue submitted results of numerous tests with IQ range of

6 4 (plus or minus 4 points) to 90. The test scores categorized him as mild to borderline ment ally3

retarded. Blue was in the special education program at school, dropped out at age 16 and reads at

a third to fift

h grade level. Prison records from a prior incarceration were admitted which established

that Blue had been diagnosed with paranoid type schizophrenia. An EEG examination was abnormal

with minimal brain injury and right temporal spike wave focus. Blue was abandoned by his parents,

raised in poverty by other relatives, and was physically and sexually abused as a child. The sexual

abuse began when Blue was seven and continued until he was fifteen or sixteen. Blue had significant

behavioral problems while in school and the state’s expert opined that Blue had antisocial personality

disorder, most likely resulting from his poor and abusive upbringing. The state’s expert also opined

that a person with Blue’s combination of mental and personality defects was likely to continue to be

in trouble with authorities. He said, a person who is “mildly mentally retarded” with a “schizophrenic

antisocial personality disorder doesn’t have a prayer.” A person like Blue is “constantly going to be

in trouble.” Blue was first imprisoned at age eighteen for theft. Except for appro ximately four

months, Blue has been incarcerated in Texas prisons since 1979.

II.

In Penry I

, the Supreme Court held that the petitioner “had bee n sentenced to death i n

violation of the Eighth Amendment because his jury had not been adequately instructed with respect

to mitigation evidence.” Penry I , 121 S.Ct. at 1915. In Penry II , the Supreme Court held that the

trial c o urt ’s jury instructions on mitigating circumstances given in response to P enry I failed to

provide the jury with a vehicle to give effect to mitigating circumstances of mental retardati on and

childhood abuse, as required by the Eighth and Fourteenth Amendments. The jury instructions in this

case are substantially the same as those given in Penry II . Blue’s jury was asked:

( 1) Was t he conduct of the defendant, MICHAEL LYNN BLUE, also known as,4

MICHAEL LYNN ROLLINS, that caused the death of the deceased, Sam Ba ttell

, committed deliberately and with the reasonable expectati on that the death of the

deceased or another would result?

(2) Is there a reasonable probability that the defendant, MICHAE L LYNN BLUE,

also known as, MICHAEL LYNN ROLLINS, would commit criminal acts of violence

that would constitute a continuing threat to society?

In answering the Special Issues you shall consider: (1) all evidence offered by either

party at the guilt / innocence phase of the trial regarding the d efendant’s individual

participation in the commission of the Capital Murder; and (2) all evidence offered by

either party at the punishment phase of the t rial, whet her it be aggravating or

mitigating evidence. If the mitigating evidence persuades you that the defendant

should not be sentenced to de at h, then you shall answer one or both of the Special

Issues “No.”

The state argues that Blue’s evidence of low I.Q. and childhood abuse did not warrant a

Penry II type additional supplement al inst ruct ion, as the evidence did not rise to the level of

constitutionally relevant mitigating evidence, nor was it beyond the reach of the jurors in determining

answers to the special issues. Citing M add en v. Collins , 18 F.3d 304, 308 (5th Cir. 1994)( c iting

Johnson v. Texas

, 509 U.S. 350, 365-67 (1993)). Specifically, the government relies on this court’s

recent decision in Tennard v. Cockrell

, 284 F.3d 592 (5th Cir. 2002). In analyzing Tennard’s P enry

claims, the court set forth the following rules of analysis:

In reviewing a Penry claim, we must determine wh et her the mitigating evidence

introduced at trial was constitutionally relevant and beyond the effective reach of the

jury. Davis v. Scott

, 51 F.3d 45 7, 460 (5th Ci r. 1995). To be consti tuti onal l y

relevant, “the evidence must show (1) a uniquely severe permanent handicap wit h

which the defendant was burdened through no fault of his own, . . . and (2) that the

criminal act was attributable to this severe perm anent condition.” I d. at 460-61

(internal quotation marks and citation omitted.)

Tennard

, 284 F.3d at 595. The second requirement is alternatively stated as “A petitioner must show

there is a nexus between the severe permanent condition (here, alleged mental retardation) and the

capital murder.” I

d. at 597. The court in T ennard concluded that Tennard was precluded f rom1 See also, Robertson v. Cockrell , 279 F.3d 1062 (5th Cir. 2002), where the panel granted

relief, presumably because the mitigation instruction suffered the same deficiencies as the Penry II

instructions. We are unable to determine from the report of that case or its predecessor, R obertson

v. Johnson

, 234 F.3d 890 (5th Cir. 2000), precisely what type of mitigating evidence was produced

or whether any consideration was given to the test set forth in Tennard

.

5 establishing a Penry claim because he failed to introduce at trial any evidence that the capital murder

was in any way attributable to his I.Q. of 67.

The facts of this case are different from those in Tennard. T he record e vidence raised an

inference sufficient to satisfy Tennard’s requirements of han dicap and nexus to the cri m e. In

Tennard , the state court found no evidence in the record of Tennard’s mental retardatio n. The

Tennard panel was, of course required to give deference to that finding. There is no similar state

court finding in this case. In T ennard

, low I.Q. was the only Penry type mitigating evidence offered.

Counsel did not argue Tennard’s low IQ in mitigation. No evidence was introduced to explain his

low I.Q. score or how it affected Tennard’s culpability. 1

In this case, in addition to evidence of Blue’s low I.Q. / mental retardation, Blue presented

evidence of paranoid schizophrenia, a deprived childhood, and physical and sexual childhood abuse.

Also, the jury was entitled to find a nexus between Blue’s criminal conduct and his retardation and

other mental and personality disorders from the testimony of the state’s expert. That witness gave

an opinion

that the combination of Blue’s low I.Q./ mental retardation, paranoid schizophrenia and

antisocial personality disorder made it almost inevitable that he would be in conflict with the law. We

are, therefore, satisfied that Blue’s mitigating evidence was constitutionally relevant.

Also, we see no basis on which to distinguish the nature and character of Blue’s mitigating

evidence from that pr esented in P enry

. Penry was more severely mentally retarded with an I.Q.

between 50 and 63 and the mental function of a 6 1⁄2 year old. However, a similar ultimate6

co nclusion was reached by psychiatric witnesses regarding Blue and Penry. Regarding Penry, a

psychiatrist o pined t hat Penry was unable “to appreciate the wrongfulness of his conduct or to

conform his conduct to the law.” P enry I

, 109 S.Ct. at 2941. This is not significantly different from

the conclusion reached by the state’s expert about the inevitability of Blue’s conflict with the law as

described above.

The g o vernment points to evidence that Blue’s mental retardation was not so severe as to

make him uneducable. It also presented evidence that Blue may have fabricated his mental condition

and traded the medication given t o him in t reatment for his schizophrenia to other inmates. This

evidence goes to the credibility of Blue’s mitigation evidence, which should be judged by the jury in

answering effective supplemental instructions addressing the mitigation evidence.

III.

In summary, Blue produced substantial “double-edged” Penry type evidence from which a

jury could conclude that he suffered from mental retardati on and other emotional problems and had

been subjected to severe physical and mental child abuse. The jury was also entitled to conclude from

the opinion testimony of the state’s expert that Blue’s emotional and personality disorders made it

very difficult for him to avoid criminal behavior and conflicts wit h aut hority and reduced his

culpability for his crimes. We agree with the district court that the mitigation instruction given by the

trial court in this case is substantially identical to the Penry II instruction and suffers from the same

infirmit ies.

For the foregoing reasons, we AFFIRM the judgment of the district court. Accordingly, we

remand this case to the district court with instructions to issue the writ and order the state to release

Blue from custody unless, within a reasonable time to be established by the district court, the State2 In making the decision whether to conduct a new sentencing proceeding, the state should also take into consideration

the Supreme Court’s recent decision in Atkins v. Virginia , ___ U.S. ___ (2002).

7 of Texas either (1) conducts a new constitutionally permissible sentencing proceeding or (2) vacates

Blue’s death sentence and imposes the automatic life sentence specified by Texas law for a defendant

who is convicted of capital murder but not sentenced to death. 2

AFFIRMED. REMANDED.

CONCUR: STEWART, Circuit Judge, concurs in the judgment only.