United States Court of Appeals

Fifth Circuit



## FILED

July 28, 2003

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 99-11262

JAMES EUGENE BIGBY,

Petitioner-Appellant,

versus

JANIE COCKRELL, Director, Texas

Department of Criminal Justice, Institutional

Division,

Respondent-Appellee.

Appeal from the United States District Court

for the Northern District of Texas

Before HIGGINBOTHAM, DeMOSS, and STEWART, Circuit Judges.

CARL E. STEWART, Circuit Judge:

Petitioner-Appellant, Gary Eugene Bigby (“Bigby”), appeals the district court’s denial of his

Petition for Writ of Habeas Corpus regarding his claim that, by declining to recuse himself after Bigby

assaulted him, the trial judge denied Bigby his constitutional right to due process. Prominent among

other claims rai sed by Bigby is his Penry claim that punishment phase jury instructions prevented the

jury from acting upon mitigating evidence submitted in his behalf. For the reasons assigned herein,2

we affirm the conviction, reverse the district court’s denial of a COA on Bigby’s Penry claim, grant

the COA , vacate Bigby’s sentence, and remand to the district court with instructions.

FACTUAL AND PROCEDURAL HISTORY

During the early morning hours of December 24, 1987, Grace Kehler returned from work to

the trailer home she shared with Michael Trekell and their infant son, Jayson Kehler. Upon entering

the trailer, Kehler found Michael Trekell’s body on the kitchen floor. Initially thinking Trekell was

unconscious, Kehler phone d “9-1-1" for assistance. In response to questions asked by the 9-1-1

operator, Kehler remembered that Trekell was caring for Jayson. She then began looking for her son

and discovered him lying dead in a face down position in a sink full of water. When questioned as

to possible suspects by the police, Kehler implicated Bigby. She noted that there were three steaks

upon the table that were not there when she left for work and recalled frequent visits by Bigby at the

residence.

Arlington Police Officer James Greenwell arrived at the scene at approximately 5:10 a.m. to

perform various duties as a crime scene investigator. He took photos, developed a diagram of the

layout of the trailer, performed a gunshot residue test on both the infant and Trekell, and obtained

postm ortem fingerprints from Trekell. Officer Greenwell also collected beer cans and a wine cooler

bottle from the trash which he thereafter had checked for fingerprints.

Dr. Charles Harvey, Deputy Tarrant County Medical Examiner, performed the autopsies. Dr.

Harvey ruled that the manner of both deaths was homicide. He determined that the cause of Trekell’s

death was craniocerebral trauma due to a gunshot wound by a .357 Magnum revolver. He

determined that the infant died as the result of drowning.3

On December 26, 1987, Fort Worth Police Detective Larry Ansley was summoned to act as

a negotiator to defuse a man’s standoff with police at a Tarrant County motel. The person inside the

motel room was Bigby. Shortly after Detective Ansley made contact, Bigby cracked the door and

said to the detective, “I know that I am guilty and so do you.” Bigby surrendered without incident,

and was taken to Fort Worth’s John Peter Smith Hospital.

The following morning, Fort Worth Police Homicide Detective Curtis D. Brannan in terviewed

Bigby after advising him of his Miranda rights. At about 3:00 a.m. on December 27, 1987, Bigby

provided the police a written statement in which he confessed to killing Trekell and the infant. The

fingerprints found on the wine cooler bottle at the crime scene were later matched to the fingerprints

of Bigby.

Bigby was tried for capital murder. During a trial recess, Bigby approached the unoccupied

bench of Judge Don Leonard (“Judge Leonard”), found a gun, and took it. In an apparent attempt

to escape, Bigby proceeded to Judge Leonard’s chambers and pointed the gun to the judge’s head

stating: “Let’s go.” He was ultimately subdued. Bigby’s counsel then moved for a mistrial, which

the judge denied.

In response to Bigby’s motion for Judge Leonard’s recusal, the matter was referred to the

presiding administrative judge, who held a hearing. During the hearing, Judge Leonard testified that

Bigby’s assault had not prejudiced or biased him toward the defendant. After cross-examination, the

presiding judge concluded that Judge Leonard did not have to recuse himself, and the trial continued.

Upon the defense resting after the guilt/innocence phase of trial, Judge Leonard allowed the

state, in its rebuttal, to intr o duce testimony about Bigby’s attempted escape as evidence of his

“consciousness of guilt” for the Trekell murders. After t he trial was completed, a jury ultimately4

rejected Bigby’s asserted defense of insanity. Furthermore, they found him guilty of the offense of

capital murder and imposed the death penalty. The trial court entered judgment on March 25, 1991,

in conformity therewith.

The Texas Court of Criminal Appeals affirmed the conviction and death sentence on direct

appeal, and the United States Supreme Court denied Bigby’s petition for a writ of certiorari. B igby

v. State

, 892 S.W.2d 864 (Tex. Crim. App. 1994), cert. denied

, 515 U.S. 1162, 115 S. Ct. 2617, 132

L. Ed. 2d 860 (1995). Bigby then filed a state application for writ of habeas corpus, which the Texas

Court of Criminal Appeals denied. E x parte Bigby

, No. 34-970 (Tex. Crim. App. filed Feb. 4, 1998).

On August 10, 1998, court-appointed counsel then filed a federal Petition for Writ of Habeas

Corpus in the United States District Court for the Northern District of Texas, Fort Worth Division.

Ado p ting the findings of United States Magistrate Judge Charles Bleil, the district court denied

Bigby’s Petition for Habeas Corpus on October 18, 1999. On December 7, 1999, however, the court

granted Bigby a Certificate of Appealability (“COA”) on the sole question of “[w]hether Petitioner

was denied the right to a trial presided over by a fair and impartial judge after he assaulted the state

trial judge.” Thereafter, all issues in the petition were fully briefed and o ral argument was held in

November 2000. Because of developing case law regarding the Penry claim, i.e. Penry v. Lynaugh

,

121 S. Ct. 1910, 1922 (2001) ( P enry II ) and Robertson v. Cockrell , 325 F.3d 243 (5th Cir. 2003),

the parties have filed comprehensive supplemental briefing. We now address the COA granted issue

and Bigby’s remaining claims for which the district court did not grant a COA.

DISCUSSION

I. Standard of Review5

To obtain a COA, a petitioner must demonstrate “that jurists of reason could disagree with

the district court’s resolution of his constitution al claims o r that jurists could conclude the issues

presented are adequate to de serve encouragement to proceed further.” M iller-El v. Cockrell

, 123

S. Ct. 1029, 1034 (2003). "Because the present case involves the death penalty, any doubts as to

whether a COA should [be] issue[d] must be resolved in [the petitioner's] favor." Hernandez v.

Johnson

, 213 F.3d 243, 248 (5th Cir. 2000). When determining if a petitioner is entitled to a COA,

we must apply the “deference scheme lai d out in 28 U.S.C. § 2254(d).” M oore

, 225 F.3d at 501.

Under this scheme, “we review pure questions of law and mixed questions of law and fact under §

2254(d)(1), and review questions of fact under § 2254(d)(2), provided that the state court adjudicated

the claim on the merits.” Id. at 105 (citation omitted).

Because Bigby’s federal petition for habeas review was filed in 1998, we review it under the

standards articulated in the Antiterrorism and Effective Death Penalty Act (“AEDPA”). See 28

U.S.C. § 2254. Under that statute, a federal court may only grant a state prisoner’s application for

a writ of habeas corpus if his incarceration was the product of a state court adjudication that “resulted

in a decision that was co nt rary t o , or involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of the United States[.]” 2 8 U.S.C. § 2254(d)(1).

“A decision is contrary to clearly established federal law ‘if the state court arrives at a conclusion

opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a

case differently than [the] Court has on a set of materially indistinguishable facts.’” G ardner v

.

Johnson

, 247 F.3d 551, 557 (5th Cir. 2001)(alterations in original)(quoting Williams v. Taylor

, 529

U.S. 362, 413, 120 S. Ct. 1495, 146 L. Ed. 2d 389 (2000)). “‘[I]f the state court i denti fi es the

co rrect governing legal principle . . . but unreasonably applies the principle to the fact s o f t he6

prisoner’s case[,]’” the court’s decision represents an unreasonable application of federal law. I d.

(quoting Williams

, 529 U.S. at 413). We presume that a state court’s factual findings are correct and

defer to them “unless they were based on an unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.” Id. (internal quotation and citation omitted); 28

U.S.C. § 2254(d)(2).

II. Due Process: Fair Tribunal

While this case involves novel yet disturbing facts, the fundamental underlying

policies and law that these facts implicate are much less unique. Stated succinctly, the cornerstone

of the American judicia l syst em is the right to a fair and impartial process. S ee, e.g., Bracy v.

Gramley

, 520 U.S. 899, 117 S. Ct. 1793, 138 L. Ed. 2d 97 (1997). Therefore, any judicial officer

incapable of presiding in such a manner violates the due process rights of the party who suffers the

resulting effects of that judicial officer’s bias. See id.

“The Due Process Clause of the Fourteenth Amendment establishe s a const itutional floor,

[however,] not a uniform standard.” I d

. at 904. This floor “clearly requires a ‘fair trial in a fair

tribunal,’ before a judge with no actual bias against the defendant or interest in the outcome of his

particular case.” I d. at 905 (citation omitted). The crux of Bigby’s habeas corpus complaint is that

his assault of Judge Leonard created an impermissible bias t hat ult imately violated Bigby’s clearly

established constitutional right to a fair trial.

In response t o Bigby’s claim, the district court adopted the magistrate judge’s Findings,

Conclusions, and Recommendations and recognized that “bias by an adj udicat or is not lightly

established.” Valley v. Rapides Parish Sch. Bd ., 118 F.3d 1047, 1052 (5 th Cir. 1997). This is true

because, “[o]rdinarily, we presume that public o fficials have properly discharged their official duties.”1 See, e.g., Aetna Life Ins. Co. v. Lavoie

, 475 U.S. 813, 824-25,106 S. Ct. 1580, 89 L. Ed. 2d 823

(1986)(holding th at t he Justice’s interest in the case was “direct, personal, substantial, [and]

pecuniary” and concluding that his participation in the case “violated appellant’s due process

rights”)(internal quotati ons and citation omitted)( alteration in original); Withrow v. Larkin

, 421 U.S.

35, 47, 95 S. Ct. 1456, 43 L. Ed. 2d 712 (1975)(reasoning that “experience teaches that the

probability of actual bias on the part of the judge . . . is too high to be constitutionally tolerable” in

cases in which the judge “has been the target of personal abuse or c rit icism from the party before

him”)(citations omitted); In re Murc hinson , 349 U.S. 133, 139, 75 S. Ct. 437, 71 L. Ed. 749

(1927)(holding that it was a violation of due process for one adjudicator to preside as the grand jury

and judge for the same defendants).

2 The Court clarified that an “extrajudicial sou rce”in not the “only basis for establishing

disqualifying bias or prejudice.” L iteky

, 510 U.S. at 551. It noted that “[a] favorable or unfavorable

predisposition can also deserve to be characterized as ‘bias’ or ‘prejudice’ because, even though it

springs from the facts adduced or the events occu rring at t rial, it is so extreme as to display clear

in abilit y t o render fair judgment.” I d. (citations omitted). Writing separately to concur in the

judgment, Justice Kennedy, with whom Justices Blackmun, Stevens, and Souter joined, agreed “with

7 Bracy

, 520 U.S. at 909 (internal quotati ons and citations omitted). As such, the district court

reasoned that Bigby had the burden to overcome “two strong presumptions: (1) the presumption of

honesty and integrity of the adjudica t o rs; and (2) the presumption that those making decisions

affecting the public are doing so in the public interest.” Valley , 118 F.3d at 1052.

We note that the United States Supreme Court has consistently enforced the basic right to due

pr o cess and found that decision makers are constitutionally unacceptable when: (1) the decision

maker has a direct personal, substantial, and pecuniary interest in t he outcome of the case; (2) an

adjudicator has been the target of personal abuse or criticism from the party before hi m; and (3) a

judicial or quasi judicial decision maker has the dual role of investigating and adjudicating disputes

and complaints. I d. 1 To demonstrate such a due process violation and secure relief based thereon,

Bigby was required to establish that a genuine question exists concerning Judge Leonard’s

impartiality. S ee Liteky v. United States

, 510 U.S. 540, 552, 114 S. Ct. 1147, 127 L. Ed. 2d 474

(1994). 2 Moreover, adjudication before a biased trial judge falls wit hin the “very limited class ofthe Court insofar as it recognizes that there is no per se rule requiring that the alleged impartiality

arise from an extrajudicial source.” Id. at 557.

8 cases” that represents a “structural” error subject to automatic reversal. N eder v. United States

, 527

U.S. 1, 7-8, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999).

III. Recusal After a Party Attacks the Judge

Bigby’s assault of Judge Leonard and the due process violations alleged to have occurred on

the subsequent failure to recuse him present a res nova issue within the Fifth Circuit. Nonetheless,

persuasive authority from one of our sist er circuits appears propitious to the instant inquiry. S ee

Wilks v. Israel , 627 F.2d 32 (7 th Cir. 1980).

In Wilks

, t he pet it io ner became agitated and angry with the judge and threw a stamping

machine and microphone at him during a pretrial hearing. I d. at 36. When the petitioner was on the

witness stand, but while the jury was not in the courtroom

, he jumped from the chair and assaulted

the trial judge. I d. While still outside of the jury’s presence, the judge stated, “I am going to say it

for the record, he is going away for so long they are going to forget that they ever knew him, and I

want any reviewing court to know what my intentions are.” I d. When his emotions subsided, the

judge recanted from this position stati n g that he had had over sixty jury trials in that year and that

“this is just another defendant” as far as he was concerned. I d. The judge then proceeded to preside

over the defendant’s trial. Id. at 36-37.

Discussing whether the trial judge’s refusal to recuse himself was in error, the court stated

that “the petitioner must show that the refusal to recuse was a ‘fundamental defect which inherently

result[ed] in a complete miscarriage of justice

. . . .’” Id. at 37 (quoting Hill v. United S tates , 368

U.S. 424, 428, 82 S. Ct. 468, 471, 7 L. Ed. 2d 417 (1962)). The court further reasoned that while9

a trial judge could be expected to react adversely to such unruly conduct, “[a] petitioner’s deliberate

attack on the trial judge calculated to disrupt the proceedings will not force a judge out of a case.”

Id. (citing Mayberry v. Pennsylvania

, 400 U.S. 455, 463, 91 S. Ct. 499, 504, 27 L. Ed. 2d 532

(1971)). To conclude otherwise would implicit ly sanction such attacks in desperate attempts by

defendants to precipitate new trials before new judges, encourage unruly courtroom behavior, and

“greatly disrupt judicial administration.” Id.

Thus

, the Wilks court explicitly declined to adopt a per se rule based on the mere appearance

of prejudice, opting instead to “examine the trial to ensure that the trial judge, despite having good

cause for adverse feelings toward a defendant, has conducted a fair trial.” I d. at 37 n.6. The central

criterion the Wilks court utilized in determining whether the trial judge had conducted a fair trial was

whether the trial judge’s rulings presented indicia of a bias against the defendant. Id. at 37. Finding,

from a review of the record, that “the [trial] court’s rulings were appropriate and in no way reflected

any animosity toward the petitioner,” the Wilks court concluded that “petitioner received a fair trial

free from judicial prejudice.” Id.

We agree with the Seventh Circuit’s approach. A p er se rule of recusal would lend itself to

deliberate manipulation of the judicial system. Such an automatic rule would invite recusal motions

from defendants whose sole purpose in attacking a judge or engaging in unruly behavior is either to

manufacture constitutional due process violations or to delay trial proceedings

. T herefore, contrary

to petitioner’s request, we decline to presume prejudice on the part of the trial judge simply because

of the fact of the attack, but rather must examine the record for indications of actual bias on the part

of the trial judge.10

Petitioner urges that the trial judge’s decision to allow evidence of petitioner’s attack on the

judge, and his concomitant refusal to provide a limit ing instruction restricting the jury’s consideration

of the evidence to its bearing on petitioner’s state of mind, constitute indicia of the trial court’s bias.

In determining whether the judge’s ruling on these matters indicated bias on his part, we first look

t o the precise nature of the evidence proffered, and then to the court’s stated basis, if any, for its

decision to admit the evidence without a limiting instruction.

The sta t e first proffered the testimony of Bailiff Tim M. Stallings (“Stallings”), who was

present in the courtroom at the time of petitioner’s escape a t t empt. Stallings testified in

relevant part as follows:

Q. During a break earlier this morning about 10:00 o’clock, where were you?

A. I was sitting at my desk over there.

Q. Who was in the courtroom as you recall at that time?

A. The defendant, and I think you were.

Q. When you say “the defendant,” who are you talking about?

A. James Bigby, the gentleman at the end of the table there. . . .

Q. The jury was not in the courtroom, were they?

A. No, sir. . . .

Q. While you were seated . . . ., what did the defendant do?

A. He got up like he was going to get a drink of water and then–

Q. What happened at that point?

A. And he didn’t get any water and he st arted running behind the bench. I

jumped up and started after him. . . .

Q. What did he do?11

A. He reached in and got to the Judge’s desk and started reaching for the drawer,

and I drew my weapon.

Q. Did you say anything at that point?

A. I told him to stop again.

Q. Did he?

A. No. He pointed a gun at me. . . .

Q. When you say “a gun,” what kind of gun are you talking about?

A. .38 Colt.

Q. Revolver?

A. Yes, sir.

Q. What did he do with that gun?

A. He pointed it towards me.

Q. What happened at that point?

A. I ducked down behind the clerk’s desk, and then I heard a noise, sounded like

the Judge’s chair was moving. So I jumped up and saw him running, and then

I came around by the court reporter’s desk and he pointed the gun at me again

and I ducked, and by the time I could get back up, he had gone through the

door i nto the corri dor.

After the conclusion of Stallings’ testimony, the state called Baili ff Barbara Hackney

(“Hackney”) to the stand. On direct examination, she testified as follows:

Q. How are you employed?

A. I’m employed by Judge Leonard as Grand Jury bailiff, Tarrant County.

Q. About 10:00 o’clock this morning were you in his office?

A. Yes, I was.

Q. Do you remember anybody else who was in the office?12

A. Yes. A man came through the door to the right side of me with a gun in his

hand.

Q. Do you see that person in the courtroom?

A. Yes, I do. . . . This man over here with a suit on and hair back.

Mr. Medlin: Your honor, m ay t he reco rd reflect she has identified the

Defendant?

THE COURT: It may so reflect

Q. Was Judge Leonard in the room?

A. Yes, he was. . . .

Q. What did the person you identified do as he walked into the Ju dge’s room

, office?

A. He walked into the room beside the desk.

. . . He had a gun in his hand. He

walked up about two steps toward the Judge.

. . and he pointed it at his head

and said, “Let’s go, Judge.”

Q. What happened at that point?

A. At that point the Judge looked up at him and immediately jumped up out of

his chair and grabbed the gun hand, slammed it up and back against the wall.

They ended up against the wall, and when they did I ran out looki ng f

or

someone to help.

Q. Where did you see the person you identified point t he gun at the Judge; at

what part of the Judge did he point the gun?

A. He pointed it right at his head. He was standing over – the Judge was sitting

and he was standing over him, and he had it right at his head.

Q. Are you talking about Judge Leonard seated just to your right?

A. Yes, sir. Judge Leonard was seated right in front of me.

In evaluating the potential effect of this evidence on the jury , we are persuaded that whi l e

admitting Bailiff Stallings’ testimony struck the appropriate balance between the competing concerns13

regarding introducing evidence of Bigby’s skullduggery, this deli cate balance swung out of kilter

when the prosecution proffered Bailiff Hackney’s testimony. Hackney’s testimony was prejudicial

to the petitioner because of a jury’s typically high regard for a presiding judge and the probability that

the jury in Bigby’s case came to identify with the judge during the course of the proceedings

. See,

e.g., Carolyn E. Demarest, Civility in the Courtroom from a Judge’s Perspective, 69 N.Y. S T . B.J.

24, 25 (May/June 1997) (“[J]urors usually identify with the judge who, like themselves, is meant to

be impartial. A personal attack upon the judge is likely to turn the jury against the attacking attorney

. . . .”). Although admission of the evidence may have itself been a violation of petit io ner’s due

process rights, because of the potential that its admission deprived defendant of a fair trial, that is a

separate question from whether the trial judge’s admission of the testimony, and corresponding failure

to give a limiting instruction, constitute indicia of bias on the judge’s part. Because the trial court

provided a basis for admission of the evidence grounded in established law, we cannot conclude that

such is the case.

After the state announced that it intended to proffer testimony of Bigby’s attempted escape,

defense counsel objected to the testimony on the basis that “the prejudicial nature of it h ighly

outweighs the probative value,” and that it would deny Bigby “a fair trial.” The court overruled the

objection, providing the following justification for its ruling:

The Co urt finds that the evidence tendered by the state concerning his attempted

escape is admissible on the basis of guilt or innocence in trials of this State, and it may

have some relevance to the jury if they consider it important of any planning he might

have affecting his insanity. I don’t know if the jury thinks it’s important or not, but

they will receive it.

When presented with this issue on direct appeal, the Texas Court of Criminal Appeals analyzed the

admissibilit

y of the a t t ack evidence solely from an evidentiary standpoint. It reasoned that3 The court acknowledged that “[i]n his fourth and fift h grounds for relief, [Bigby] complains that

his due process right s were violated when the State introduced testimony about the armed escape

attempt made by [Bigby] during the defense’s rebuttal case at the guilt-innocence phase of trial[,]”

but ultimately concluded that “[a]lthough [Bigby] phrases his complaints as a denial of due process,

his complaints are based solely on the admission of evidence at his trial.”

4 “With regard to his fourth allegation [Applicant’s due process rights were violated by permitting

the State to introduce testimony

. . . concerning an incident of attempted escape which occurred out

of the jury’s presence during trial] the trial court found that [Bigby’s] compl aints were rai sed and

re ject ed o n direct appeal and that, although he phrases his complaints as a denial of due process,

[Bigby’s] allegations are really complaints concerning the admission of evidence at trial.”

14 “[e]vidence of flight or escape is admissible as a circumstance from which an inference of guilt may

be drawn,” and in Bigby’s case “the evidence of flight enhance[d] the State’s case.” Bigby v. State,

892 S.W.2d 864, 884 (Crim. App. 1994). Thus, the Court of Criminal Appeals concluded that “the

trial court’s ruling was within the ‘zone of reasonable disagreement’” and not clearly erroneous. Id.

In a subsequent application for state habeas corpus relief, Bigby asserted that Judge Leonard

violated his due process rights by allowing evidence of his having assaulted the court. After deciding

that a fact-finding hearing was unnecessary, the Criminal District Court characterized Bigby’s claim

as a mere evidentiary challenge that had been previously “raised and rejected by the Court of Criminal

Appeals on direct appeal” and summarily concluded that Bigby “ha[d] failed to plead or prove that

the issue rendered his conviction void

. . . .” 3 Upon review, the Texas Court of Criminal Appeals

found Bigby’s due process argument similarly unavailing. 4

By conflating Bigby’s due process and evidentiary claims, the Texas state courts erred in their

analysis of the bias issue. While the admissibility of the attack evidence and the abilit y o f the trial

judge to act as a fair and impartial tribunal are separate questions, they are necessarily interrelated.

If the trial judge had no obvious support for his ruling in the law, the decision would likely reveal an

illicit predisposition-the poisoned font from which the ruling sprang.15

While, in our opinion, the trial court erred in failing to quell the testimony regarding the attack

before the jury heard Bailiff Hackney’s rendition of the petitioner’s taking the trial judge hostage and

holding a gun to his head, we cannot conclude that this alone overrides the presumption of fairness

on the trial judge’s part and compels a conclusion that structural error inhered in petitioner’s trial.

The judge was not without a legal basis for his ruling, as under Texas law evidence of an escape is

admissible if relevant. Burks v. State, 876 S.W.2d 877, 903 (Tex. Crim. App. 1994). Although the

trial court, as evidenced by its rulings, implicit ly fa iled to recognize the prejudicial effect such

evidence might have on the jury, he was not acting clearly outside the bounds of law or reason in a

manner that would signal any bias towar d t he defendant. Thus, we conclude that the trial court’s

decisions in regard to the attack evidence do not, by themselves, constitute indicia of bias sufficient

to declare the trial tainted by structural error.

This conclusion does not end our due process inquiry, however. We must next take up the

question whether, apart from the issue of the trial judge’s bias, the court’s admission of the attack

evidence and failure to provide a limit ing inst ruction deprived petitioner of a fair trial, due to the

prejudicial nature of the evidence. “[W]hen a state court admits evidence that is ‘so unduly

prejudicial that it renders the trial fundamentally unfair, the Due Process Clause of the Fourteenth

Amendment provi d es a mechanism for relief.’” Dawson v. Delaware, 503 U.S. 159, 179 (1992)

(quoting Payne v. Tennessee, 510 U.S. 808, 825 (1991)). In conducting this analysis, it is irrelevant

whether the evidence was correctly admitted pursuant to state law. Estelle v. McGuire, 502 U.S. 62,

67-68 (1991). Rather, our sole inquiry is whether the admission violated the Constitution. Id. at 68.

Whether admission of the attack evidence, coupled with the trial court’s refusal to provide

a limit ing instruction, constitute a violation of defendant’s due process rights is not the sole focus of16

our constitutional analy s is. “Assuming arguendo that the admission of [the evidence] was

constitutional error,” petitioner’s claim will still fail absent a showing “that the testimony had a

‘substantial and injurious effect or influence in determining the jury’s [] verdict.’” Janecka v. Cockrell

,

301 F.3d 316, 328-29 (5th Cir. 2002). Examining the evidence put forth during the guilt/innocence

stage of Bigby’s trial, we find “it is highly improbable that the jury would have” reached a different

verdict had the evidence been excluded, or had the trial judge given a limiting instruction. See id.

The state presented overwhelming evidence that defend ant co mmitted the murders, including two

confessions by defendant. It also elicited testimony from two psychiatric experts, including one who

had been petitioner’s psychiatrist before his incarceration, that Bigby did not suffer from a severe

mental disease or defect such that he could not tell or did not know his conduct was wrong. As the

Court of Criminal Appeals concluded, “[w]hile several of appellant’s experts testified that appellant

could not or did not know his conduct was wrong, several did testify that appellant knew his conduct

was illegal.” Bigby, 892 S.W.2d at 877. Furthermore, Bigby’s statement to the police at the time

of his arrest, that “I know I am guilty and so do you

. . . evinces an understanding by [Bigby] that he

knew his conduct was illegal.” Id. We therefore conclude that, even if the prejudicial effect of the

attack evidence was of a constitutional dimension, petitioner’s due process argument fails because

he cannot establish that the evidence had a substantial or injurious effect or influence on the jury’s

verdict at the guilt/innocence stage of the proceedings.

The effect of the attack evidence at the sentencing stage is more difficult. We decline to

consider this question, however, because, as discussed below, we vacate petitioner’s sentence and

remand this case for resentencing on the basis that the trial court committed reversible error in giving

the “nullification instruction” to the jury during the sentencing proceedings.17

IV. Bigby’s Additional Claims for Grant of COA

A. Unconstitutional Jury Instructions

In his application for COA, Bigby further argues that the district court’s jury instruction gave

the jurors an opti on o f nullifying mitigating circumstances and thus impinged his right to have an

individualized assessment of the appropriateness of the death penalty in his case. According to Bigby,

this violated Penry v. Lynaugh

, 492 U.S. 302, 109 S. Ct. 2934, 106 L. Ed. 256 (1989) (Penry I). The

Texas Court of Criminal Appeals rejecte d this complaint when Bigby raised it on direct appeal.

Bigby

, 892 S.W.2d at 890. Relying on R oberts v. Louisiana

, 428 U.S. 325, 335, 96 S. Ct. 3001,

3007, 49 L. Ed. 2d 974 (1976), Bigby reiterates his nullification argument by claiming that there is

an “element of capriciousness in making the jurors’ power to avoid the death penalty dependant on

their willingness to accept [an] invitation” to render a false verdict.

A State’s capital punishment scheme must do two thing s to meet the requirements of the

Eighth Amendment. First, it must “channel the discretion of the judge or jury to ensure that the death

sentence is not meted out wantonly or freakishly.” G raham v. Co llins

, 506 U.S. 461, 468, 113 S. Ct.

892, 898, 122 L. Ed. 2d 260 (1993). Second, it must confer sufficient discretion on the sentencing

body to consider the character and record of the individual offender. I d. Thus, the relevant

mitigating evidence cannot be placed beyond the effective reach of the jury. Id. at 475. “To grant

relief on a Penry claim, we must determine (1) that t he . . . evidence was constitutionally relevant

mitigating evidence, and, if so, (2) that the

. . . evidence was beyond the effective scope of the jury.

Madden v. Collins , 18 F.3d 304, 308 (5th Cir. 1994).

We conclude that Bigby has demonstrated that reas o nable jurists would find the district

court’s assessment of his Penry claim debatable. See Miller-El

, 123 S. Ct. at 1040. First, Bigby has18

established there exists evidence of constitutionally relevant mitigating evidence. In particular, Bigby

has provided testimony that he suffer s fro m chronic paranoid schizophrenia, an involuntary,

permanent, and severe mental condition that contributed to his criminal actions consistent with the

standard set forth in Robertson v. Cockrell , 325 F.3d 243 (5th Cir. 2003). Second, the nullification

instruction at issue in the instant case is similar to the nullification instruction that the Supreme Court

rejected as unconstitutional in Penry I

, rendering the constitutionally mitigating evidence out of the

reach of the jurors during the punishment phase of Bigby’s trial. Thus, we reverse the district court’s

denial of a COA on this issue and grant the COA. During the pendency of this appeal the Supreme

Court h anded down P enry II

, 121 S. Ct. 1910, 1922 (2001) and the en banc court decided

Robertson v. Cockrell

, 325 F.3d 243 (5th Cir. 2003)

. Because the post oral argument briefing has

ful ly addressed these cases and because the evidentiary record is complete, we conclude that the

merits of the COA Penry

claim - that the nullification instruction during the sentencing phase of his

trial was constitutionally defective - is ripe for decision.

1) Constitutionally Relevant Mitigating Evidence

This Circuit has created a two-part t est t hat a defendant must prove in order to submit

relevant evidence that he is less culpable for the crime he committed. The evidence presented must

establish “(1) a uniquely severe permanent handicap[] with which the defendant was burdened

through no fault of his own

, and (2) that the criminal act was attributable to this severe permanent

condition.” Davis v. Scott

, 51 F.3d 457, 460

- 61 (5th Cir. 1995) (internal quotati on marks and

citations omitted); see Robertson , 325 F.3d at 251 (“This formulation encompasses four principles

found in Penry I : voluntariness, permanence, severity, and attribution.”).5 The actual testimony given by Dr. Grigson is as follows:

Q. As a result of [the psychiatric] examinations, were you able to form an opinion as to whether

or not Mr. Bigby suffered from mental illness or mental defect.

A. Yes, sir, I was.

Q. And what is that?

19 During Bigby’s trial, Dr. James Grigson (“Dr. Grigson”), psychiatrist, was called to testify

on Bi gby’s behalf. Dr. Grigson stated that in his opinion, Bigby suffers from chronic paranoid

schizophrenia. He testified that paranoid schizophrenia is one of the more serious and severe forms

of mental illnesses. When asked to explain to the jury the effects of this disease, Dr. Grigson stated

that usually individuals suffering from this mental condition “feel[] that people are plotting against

th em o r doing things to hurt them.” He continued to clarify that schizophrenia means “that the

individual is suffering from a psychosis where there is gross impairment in terms of interpersonal

relationships .

. . and reality testing, meaning that they misperceive what is going on around them.”

As a result, Dr. Grigson stated that this paranoid disorder manifests itself in psychotic delusio nal

beliefs.

Bigby’s trial counsel asked Dr. Grigson if Bigby had suffered from any delusions or psychotic

beliefs. The physician responded in the affirmative. Specifically, he st ated that at the time the

murders occurred, Bigby suffered from delusions that Michael Trekell was involved in a conspiracy

against him. In his opinion, Dr. Grigson testified that “at the time of the offense . . . Bigby was

suffering from [this] serious severe mental illness and was not aware of the difference between right

and wrong.” Dr. Grigson concluded that there is no other explanation for Bigby’s actions other than

the fact that he suffers from a m ental illness. 5 A tA. Yes, in my opinion he is suffering from a mental illness, that being chronic paranoid

schizophrenia.

***

Q. During the examinations that you did of Mr. Bigby, did you discuss with him the basis of the

charges against him he re, t he killings of the infant, Jayson [Trekell], and his father, Mike

Trekell?

A. Yes, sir, I did.

Q. And as a result of your conversations regarding these murders with Mr. Bigby, were you able

to form an opinion as regards to his sanity at the time of the offense.

A. Yes, sir, I was.

Q. And what is that opinion, Doctor?

A. It is my opinion at the time of the offense Mr. Bigby was suffering from a severe mental

illness and was not aware of the difference between right and wrong. He could not

appreciate it.

***

Q. Is it your opinion that . . . in connection with this schizophrenic illness that he suffers from,

does Mr. Bigby have any type of delusions or delusional system that he suffers from.

A. Oh, yes, sir, he certainly does.

Q. What is the nature of that?

A. Well, this goes back to the injury that he had while working for Frito Lay. He was awarded -

in his mind

- $26,000, which Frito Lay refused to pay. He felt that they were sending people

out to follow him, look at him. He felt that they were plotting against him. And this slowly

spread to include other people, his friends, that they, too, were plotting against him.

Q. Essentially, the individual Mike Trekell, the person that he killed in connection with

this case, was that a person that he felt like was involved in the conspiracy?

A. Oh, yes, sir, it certainly was. He felt that he was a part of the conspiracy.

Q. Did that belief have anything to do with the actual murder itself?

A. Absolutely, without the delusional state, without his schizophrenia, he would not have

20killed that person. There was no reason for it.

Q. What about the infant; did Mr. Bigby ever express any reason to you or any explanation as

to why he killed the baby, Jason [Trekell]?

A. No. He was - - the baby was there. Actually he had been fond of the baby prior to that time

and this was part of an irrational act that occurred. It was very tragic, but still an irrational

act on his part.

Q. Essentially there is no other explanation for it other than his illness.

A. Right, that’s true.

(Emphasis added.)

21 the sentencing phase, Dr. Grigson reiterated his belief that Bigby suff ers from chronic paranoid

schizophrenia.

“[F]or evidence to have mitigating relevance to the special issues, there must be a nexus

between the mitigating evidence and the criminal act.” D avis v. Scott

, 51 F.3d at 460. In D avis

, we

d etermined that Davis’s evidence of paranoid schizophrenia did not rise to the level of

constitutionally relevant mitigating evidence. S pecifically, we found that if Davis in fact suffered from

paranoid schizophrenia, he failed to submit any evidence linking hi s mental condition to the

commission of the murders. The holding in D avis

, however, can be distinguished from the instant

case.

Applying the requirements set out in Davis , it is clear that the evidence submitted by Bigby

constitutes constitutionally relevant mitigating evidence. Paranoid Schizophrenia is a severe mental

illness that is permanent and is not caused by any fault of the individuals suffering from the disease.

Thus, as an individual suffering from this mental condition, Bigby has satisfied the first prong of the

test. In regard to the second requirement, unlike in D avis , Bigby’s paranoid schizophrenia caused22

an insane delusion that there was a conspiracy for which at least one of his vict ims was a part of and,

as a direct result of this delusion, Bigby committed the crimes for which he wa s convicted. Thus,

Bigby has established a sufficient nexus between his mental illness and the murders.

2) Jury Instructions

We now turn to Bigby's contention concerning the constitutionality of the jury instructions

given by the district court judge at the sentenci ng phase. Bigby argues that the jury instructions

impermissibly restricted the jury's consideration of mitigating circumstances in violation of the

Supreme Court’s decision in Penry I

. In P enry I

, the Court hel d t hat Penry's Eighth Amendment

rights were violated because the jury was inadequately charged with respect to mitigating evidence

at Penry’s sentencing hearing. At the concl usio n o f t he hearing, the jury was instructed to answer

three “special issues”: (1) whether the conduct that caused the death of the vict im was committed

deliberately and with a reasonable expectatio n that death would result; (2) whether there was a

probability that the defendant would commit acts that would constitute a continuing threat to society;

and (3) whether the conduct was an unreasonable response to any provocati on by the victim. The

Supreme Court held that none of these special issues were broad enough to allow the jury to consider

and give effect to the mitigating evidence offered by Penry that he was mentally retarded and had

been severely abused as a child.

On remand, Penry was again found guilty, and the state court instructed the jury to answer

the same three special issues given at his first trial. The jury was also admonished that a “yes” answer

to any of the special issues was warranted only if supported by the evidence “beyond a reasonable

doubt,” while a “no” answer is appropriate only if there is a reasonable doubt that the answer to the

special issues should be “yes.” In addition, the court also pro vided a "supplemental instruction"23

indicating that when the jury deliberated on the special issues, it was to consider mitigating issues,

if any, presented by the evidence. The instruction provided in relevant part t hat “[t he jury] must

decide how much weight [the mitigating evidence] deserve[s], if any, and therefore, give effect and

consideration to them in assessing the defendant's personal culpability at the time [the jury] answers

the special issues,” if the jury were to 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.” The verdict form contained only the text of the

three special issues, however, and gave the jury the choice of only answering “yes” or “no.” The jury

again answered all of the special issues “yes” and Penry was sentenced to the death penalty.

In Penry II

, the Supreme Court ruled that this supplemental ins truction provi ded “an

inadequate vehicle for the jury to make a reasoned moral response to Penry’s mitigating evidence.”

121 S. Ct. 1910, 1922 (2001). Specifically, the Court again stated that the special issues were not

broad enough to give effect to Penry’s mitigating evidence, and thus, held t hat the supplemental

instruction was of no practical effect because the jury’s ability to give weight to Penry’s mitigating

evidence was “still shackled and confined within the scope of the three special issues.” Id. at 1921

(internal quotati on marks and citation omitted). The Supreme Court also noted that instructing the

jury to answer the special issues “yes” only if supported by the evidence “beyond a reasonable doubt,”

while at the same time instructing the jury to answer one or more of the special issues “no” in order

to give effect to any mitigating evidence presented by Penry did not comport with reason and logic.

It stated that in effect, the instruction allowed the jurors to cha nge one or more “truthful ‘y es’

answers to an untruthful ‘no’ answer in order to avoid the death sentence for Penry.” I d. at 1922.6 In Bigby , the jury was instructed to answer the following special issues:

SPECIAL ISSUE NO. 1

Do you find from the evidence beyond a reasonable doubt the conduct of the Defendant

. . . was

committed deliberately and with reasonable expectations that . . . death . . . would result?

SPECIAL ISSUE NO. 2

Do you find from the evidence beyond a reasonable doubt that there is a pro bability that the

Defendant

. . . would commit criminal acts of violence that would constitute a continuing threat

to society?

SPECIAL ISSUE NO. 3

Do you find from the evidence beyond a reasonable doubt that the conduct of the Defendant.

. . was unreasonable in response to the provocation, if any [by the victim(s)]?

The germane portion of the supplemental instruction reads as follows:

If you find that there are an mitigating circumstances, you must decide how much weight they

deserve and give t hem t hat effect you believe to be appropriate when you answer the Special

Issues. If you decide, in consideration of the evidence, if any, that a life sentence, rather than a

death sentence, is a more appropriate response to the personal moral culpability of the defendant

you are

. . . instructed then to answer any special issues, to which such mitigating circumstances

apply, and under consideration “no.”

As stated previously, the supplemental instruction given in Penry II provides as follows:

If you find that there are any mitigating circumstance, you must decide how much weight they

deserve, if any, and therefore, 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 th e mit igat ing evidence, if any, that a life sentence, as reflected by a negative finding to the

24 Thus, if the jury desired to answer one or more of the special issues untruthfully to give credence to

the mitigating evidence presented by Penry, they would have had to violate their oath to render a

“true verdict.” Penry II , 532 U.S. at 800 (citation omitted).

The special issues and supplemental instruction given at the conclusion of Bigby’s sentencing

hearing are almost identical to those discussed in P enry II

. 6 Because we discern no meaningfulissue 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.

The only apparent difference betw een the supplemental instruction p rovided in Bigby and that

given in Penry II is the exact phrasing. It is clear that the difference in phrasing between the two

instructions is of minor significance. Each instruction adequately conveys the message that the jury

was to give effect to the defendant’s mitigating evidence, if any, by answering “no” to one or more

of the special issues. Thus, the distinction is simply one without difference.

7 Penry , 492 U.S. at 319.

25 distinction between the charges given in Penry II and those given in the instant case, we find that

Bigby has demonstrated that the contested jury instructions stripped the jury of a vehicle for

expressing its “reasoned moral response” 7 to the appropriateness of the death penalty. As in Penry

II

, the verdict form in Bigby listed the three spec ial issues but with no mention of mitigating

circumstances. In short, the same constitutional infirmities criticized by the Supreme Court in P enry

II are present in Bigby

. Accordingly, since the decision of the Texas Court of Criminal Appeals is

contrary to clearly established federal law, we reverse the district court’s denial of Bigby’s application

for COA with regard to his jury instruction claim, vacate his sentence, and remand this case to the

district court for entry of an order granting Bigby habeas relief on his Penry claim and setting aside

his sentence.

B. Denial of the Right to Impeach Witnesses

Bigby contends that the trial court improperly denied him the right to impeach Grace Kehler,

the c hief wit ness against him, by showing that her pending civil suit provided a motive to testify

falsely and by pointing out that Kehler had made contradi ctory allegations in the civil suit. A review

of the record, however , reveals a different account of the trial proceedings. In particular, Judge

Leonard did allow Bigby to question Kehler about any potential pecuniary interests arising from her26

unresolved wrongful death suit against Bigby’s physician and treating hospitals for failing to attend

adequately his mental illness. The judge merely informed Bigby’s counsel that he would not allow

the civil petitions into evidence unless Kehler denied the suit.

Bigby correctly notes that the Sixth Amendment guarantee of a criminal defendant’s right to

confront witnesses against him includes the right to cross-exami nati on. S ee Davis v. Alaska

, 415

U.S. 308, 315, 94 S. Ct. 1105, 1110, 39 L. Ed. 2d 347 (1974). But this right is subject to the wide

latitude of trial judges to impose reasonable limit s. S ee id. (stating that the right to cross-examination

is “[s]ubject always to the broad discretion of a trial judge to preclude repetitive and unduly harassing

interrogation”); Delaware v. Van Arsdall , 475 U.S. 673, 679, 106 S. Ct. 1431, 1435, 89 L. Ed. 2d

674 (1986). As such, the Confrontation Clause does not guarantee defendants cross-examination to

whatever extent they desire. V an Arsdall

, 475 U.S. at 678. Bigby fails to demonst rate that his

efforts to impeach Kehler were unconstitutionally circumscribed or that the state’s rejection of his

impeachment complaints con st itute an unreasonable application of clearly established federal law.

Accordingly, no reason exists to issue a COA on this issue.

C. Shackled and Handcuffed in the Jury’s Presence

Bigby next contends that the trial court erred by shackling him during the trial and

allowing the jury to see him handcuffed. “While a defendant is entitled to the physical indicia of

innocence, a court is justified in ordering him handcuffed and shackled during trial [when] there is

danger of escape or injury to the jury, counsel, or other trial participants.” W ilkerson v. Whitley

, 16

F.3d 64, 67 (5 th Cir. 1994); see also Holbrook v. Flynn

, 475 U.S. 560, 568-69, 106 S. Ct. 1340, 1346,

89 L. Ed. 2d 525 (1986)(stating that shackling is permissible only when “just ified by an essential state

interest specific to each trial”); Illinois v. Allen , 397 U.S. 337, 343-44, 90 S.Ct. 1057, 1061, 25 L.27

Ed. 2d 353 (1970)(opining that trial judges “must be given sufficient discret ion” to ensure the

“dignity, order, and decorum

. . . of all court proceedings” and concluding that binding and gagging

an obstreperous defendant is constitutionally acceptable in some situations). After Bigby assaulted

Judge Leonard, it was incontrovertible that he posed a real danger to all assembled in the trial court.

Judge Leonard, therefore, was not beyond the bounds of his ample discretio n t o decide whether a

defendant shoul d be restrained when he ordered Bigby shackled and handcuffed. S ee Lockhart v.

Johnson

, 104 F.3d 54, 57 (5 th Cir. 1997)(“The decision to restrain an obstreperous defendant with

visible restraints lies within the sound discretion of the trial judge.”)(citing Allen

, 397 U.S. at 343-44).

Accordingly, a COA should not issue on this point.

D. Juror Challenges

Bigby next attempts to secure a COA by arguing that he was denied due process when the

trial court altered the sequence established in Article 35.13 of the Texas Code of Criminal Procedure

for challenging jurors in a capital case. “Article 35.13 states . . . that the veniremen shall ‘be passed

for acceptance or challenge first to the state and then to the defendant.’” B igby

, 892 S.W.2d at 879.

Upon both parties’ completion of voir dire, the state must choose to accept the venire member o r

challenge him either for cause or peremptorily: only then should the defendant or his counsel exercise

its peremptory or causal challenge. Id. at 880.

In Bigby’s case, the trial court ruled that the voir dire challenges of venire member 12 would

proceed as follows: “State’s challenge for cause, appellant’s challenge for cause, State’s peremptory

challenge, and appellant’s peremptory challenge.” Id. at 879. Arguing that this ruling violated the

selection procedure set forth in Article 35.13, Bigby’s counsel obj ected. Id. Although the Texas28

Court of Criminal Appeals concluded that the district court erred in overruling this objection to the

order of voir dire, it ultimately held the error to be harmless. Id. at 881-82.

In addressing Bigby’s claims for a grant of COA based on the irregularity in the sequence of

challenges during voir dire, we note that violations of state law are not generally cognizable on habeas

review unless the error renders the trial as a whole fundamentally unfair. S ee Fuller v. Johnson

, 158

F.3d 903, 908 (5 th Cir. 1998) (citing Engle v. Isaac , 456 U.S. 107, 135, 102 S. Ct. 1558, 1575, 71

L. Ed. 2d 783 (1982)). Bigby fails to demonstrate that the tactical disadvantage, which he allegedly

suffered as a result of the trial court’s deviation, resulted in a fundamentally unfair trial. Therefore,

his claim is insufficient to support the issuance of a COA.

E. Ineffective Assistance of Counsel

After evidence of Bigby’s assault on Judge Leonard was admitted, defense counsel sought

to withdraw from the case, arguing that they should be allowed to appear as witnesses regarding the

incident and its relation to Bigby’s mental inst abilit y. Judge Leonard denied the request based on the

unnecessary delay it would create, but suggested that only one of Bigby’s defense attorney s testify.

Alt ho ugh such a course of action may have constituted a conflict of interest, neither of Bigby’s

attorney s decided to take the stand. Bigby nonetheless asserts that those decisions somehow denied

him effective assistance of counsel.

Strickland v. Washington , 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), guides

our review of Bigby’s ineffective assistance of counsel claim. Bigby’s burden is twofold. First, he

must demo nst rat e t hat his counsel’s performance was deficient. S ee Strickland

, 466 U.S. at 687.

“This requires showing that counsel made errors so serious that counsel was not functioning as the

‘counsel’ guaranteed the defendant by the Sixth Amendment.” I d. S econd, Bigby must demonstrate29

that the deficient performance prejudiced him. S ee id. “This requires showing that counsel’s errors

were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” I d. Bigby

asserts no clear grounds for deficient performance and cannot show prejudice from a conflict of

interest because his attorneys did not testify. Accordingly, a COA should not issue on this point.

F. Material Exculpatory Evidence Withheld

Finally, Bigby contends that the prosecution abridged his due process right by f ailing to

provide medical records from the county jail that detailed the numerous psychotropic medications he

was taking while incarcerated and awaiting trial . Due process is violated when the prosecution

withholds material evidence favorable to the defense. B rady v. Maryland

, 373 U.S. 83, 87, 83 S. Ct.

1194, 1196-97, 10 L. Ed. 2d 215 (1963). The state, however, bears no responsibility to direct the

defense toward potentially exculpatory evidence that either is in the possession of the defense or can

be discovered through the exercise of reasonable diligence. R ector v. Johnson

, 120 F.3d 551, 558-59

(5 th Cir. 1997). Because the records to which Bigby refers were available through the exercise of

such reasonable diligence, a COA should not issue on this claim.

CONCLUSION

For the foregoing reasons, we AFFIRM Bigby’s conviction. We REVERSE the district

court’s denia l of Bigby’s application for COA with regard to his nullification instruction claim,

GRANT the COA, VACATE Bigby’s sentence, and REMAND this case to the district court of entry

of an order granting Bigby’s habeas relief on his Penry claim and setting aside his sentence.

AFFIRM in part, REVERSE in part, VACATE AND REMAND.