                 UNITED STATES COURT OF APPEALS
                      FOR THE FIFTH CIRCUIT
                      _____________________

                           No. 01-40500
                      _____________________

                        RICHARD DINKINS,

                                              Petitioner-Appellant,

                             versus

 JANIE COCKRELL, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
                     INSTITUTIONAL DIVISION,

                                              Respondent-Appellee.


          Appeal from the United States District Court
                for the Eastern District of Texas
                          (5:98-CV-172)

                         March 28, 2002

Before JONES, BARKSDALE, and BENAVIDES, Circuit Judges.

PER CURIAM:*

     Pursuant to a certificate of appealability (COA) granted by

the district court, Richard Dinkins, convicted of capital murder

and sentenced to death, contests the denial of federal habeas

relief, contending that punishment-phase jury instructions given

pursuant to the pre-amended TEX. CODE CRIM. PROC. art. 37.071 and

Penry v. Lynaugh, 492 U.S. 302 (1989) (Penry I), violated the

Eighth and Fourteenth Amendments by preventing the jury from




     *
      Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
adequately     considering       the     favorable     conduct   and    character

mitigating evidence he presented.              AFFIRMED.

                                          I.

      On 12 September 1990, a massage therapist and client were

found shot at the therapist’s office in Beaumont, Texas; they died

shortly     thereafter.      At    the    scene,     police   discovered:          an

appointment book listing an appointment with a “Ricky Dennis”

earlier that evening; and a client application form for a “Ricky

Dinkins”, including his place of employment and a telephone number.

      The   next   day    investigators        for   the   Beaumont    police      and

district    attorney     questioned      Dinkins     and   arrested    him    on   an

outstanding misdemeanor warrant. Later that day, Dinkins consented

to a search of his automobile, from which a .357 revolver and two

boxes of ammunition were seized.

      The following day (14 September), after obtaining Dinkins’

consent, the investigators searched Dinkins’ home, in his presence,

and   discovered    a     pair    of   blood-stained       trousers.         Shortly

thereafter, Dinkins gave a statement inculpating himself in the

murders.     Dinkins was indicted that October.             At trial in 1992, it

was further established that:                 the blood on Dinkins’ trousers

matched the blood type of one of the victims; the .357 revolver was

sold to Dinkins the day before the murders; and slugs recovered

from the crime scene were fired from that revolver.               Additionally,

a witness testified that, on the evening of the murders, he saw



                                          2
Dinkins enter his automobile and drive away from the crime scene.

The jury convicted Dinkins of capital murder.

      During the punishment phase, the State presented two witnesses

— the investigators who had handled the case.        They testified about

the   details   of   the   murder   and   Dinkins’   demeanor   during   the

investigation.

      Dinkins presented ten character witnesses.           They testified

that:   he is not a violent or dangerous person; he is a “nice boy”

and a “compassionate individual” with a “good personality”; he

often helped care for his parents and grandparents; he “did things”

for a woman and her husband and “would not take payment for it”; he

had no disciplinary problems during his pre-trial incarceration and

had reported a possible jail break; he once gave a woman a

cigarette lighter because she had lost her husband’s; and he served

in the Air Force for approximately four years as an Air Policeman

and was “parachute qualified”.

      The judge instructed the jury on three special issues, in

accordance with TEX. CODE CRIM. PROC. ANN. art. 37.071 (Vernon 1981),

which provided, in pertinent part:

                (b) On conclusion of the presentation of
           the evidence [in a capital trial where the
           state seeks the death penalty], the court
           shall submit the following issues to the jury:

                (1) whether the conduct of the defendant
           that caused the death of the deceased was
           committed deliberately and with the reasonable
           expectation that the death of the deceased or
           another would result;


                                      3
                (2) whether there is a probability that
           the defendant would commit criminal acts of
           violence that would constitute a continuing
           threat to society [future dangerousness]; and

                (3) if raised by the evidence, whether
           the conduct of the defendant in killing the
           deceased was unreasonable in response to the
           provocation, if any, by the deceased.

     In addition to the three statutorily-mandated issues, and in

an effort to comply with Penry I (1998), discussed infra, the

district court provided a supplemental instruction:

                 In making these decisions, you are
           instructed that you can consider any evidence
           which, in your opinion, mitigates against an
           answer of “yes” to each issue, including any
           aspects of the Defendant’s character or
           record, and any of the circumstances of the
           commission of this offense which you find to
           be mitigating.   And if such evidence causes
           you to have a reasonable doubt as to any
           issue, you are required to answer that issue
           “no”.

Contrary to the record, and without explanation, Dinkins’ brief

quotes an entirely different supplemental instruction. Apparently,

this is an attempt to analogize his case to Penry v. Johnson, 121

S. Ct. 1910 (2001) (Penry II).

     The   jury   answered    the   three   statutorily-mandated   special

issues affirmatively.        (Dinkins incorrectly states that only the

first two special issues were submitted to the jury.) Accordingly,

Dinkins was sentenced to death.

     The Texas Court of Criminal Appeals affirmed the conviction

and sentence, and the Supreme Court denied certiorari.        Dinkins v.


                                      4
State, 894 S.W.2d 330, 361 (Tex. Crim. App.) (en banc), cert.

denied, 516 U.S. 832 (1995).

     Dinkins sought state habeas relief, presenting, inter alia,

the issue for which the COA was later granted by the district

court:   that the punishment-phase instructions precluded the jury

from adequately considering mitigating evidence, in violation of

the Eighth and Fourteenth Amendments (Penry claim).      The habeas

court recommended denying relief, finding Dinkins had “failed ...

to allege any facts which would bring his Claim within the scope

of” Penry I, and that, consequently, the Penry claim was “not

entitled to consideration because it fails to allege any facts that

would support it”.   Ex Parte Dinkins, Writ No. 56212-A (252d D. Ct.

23 July 1998).   The Court of Criminal Appeals adopted the findings

and conclusions and denied relief.    Ex parte Dinkins, No. 38671-01

(Tex. Crim. App. 4 Nov. 1998).

     Dinkins filed for federal habeas relief in November 1998.    A

magistrate judge recommended denial.      For the Penry claim, the

magistrate judge found that the charge afforded the jury sufficient

latitude to consider the relevant mitigating evidence.     In March

2001, after a de novo review and over Dinkins’ objections, the

district court adopted the report and recommendation and granted

the State’s motion for summary judgment.

     Penry II was rendered post-judgment.     In the light of Penry

II, the district court granted a COA in June 2001.

                                  5
                                  II.

     “Summary judgment is appropriate if the record discloses ‘that

there is no genuine issue as to any material fact and that the

moving party is entitled to a judgment as a matter of law.’”

Williams v. Scott, 35 F.3d 159, 161 (5th Cir. 1994) (quoting FED.

R. CIV. P. 56(c)), cert. denied, 513 U.S. 1137 (1995). In a federal

habeas appeal, “[w]e review the district court’s grant of summary

judgment de novo”.     Id.   We do so “applying the same standard of

review to the state court’s decision as the district court”.

Thompson v. Cain, 161 F.3d 802, 805 (5th Cir. 1998).

     “[B]ecause [Dinkins] filed his federal habeas petition after

the effective date of the Antiterrorism and Effective Death Penalty

Act of 1996 ..., Pub. L. 104-132, 110 Stat. 1214 (1996), the

statute applies to his case”.     Martinez v. Johnson, 255 F.3d 229,

237 (5th Cir. 2001), cert. denied, No. 01-7408, 2002 WL 257045

(U.S. 25 Feb. 2002).    But, the point at which Dinkins first raised

his Penry claim, and the grounds on which the state courts disposed

of it, are not entirely clear.      Of course, whether a state court

has “adjudicated [the claim] on the merits” affects the deference

federal courts are to afford the state court’s decision. 28 U.S.C.

§ 2254(d).     We need not decide what deference to afford, however.

Even affording none, Dinkins’ Penry claim fails.

     Subsequent to Penry I (1989), discussed below, Texas amended

art. 37.071.    The jury is now instructed, inter alia, to determine

                                   6
“[w]hether, taking into consideration all of the evidence, ...

there is a sufficient mitigating circumstance or circumstances to

warrant that a sentence of life imprisonment rather than a death

sentence be imposed”.         TEX. CODE CRIM. PROC. ANN. art. 37.071(e)(1)

(Vernon Supp. 2002).          The amendments, however, apply only for

capital offenses subsequent to 31 August 1991. Id. art. 37.071(i).

Dinkins committed the murders prior to that date.

                                        A.

     Penry     I   involved    an   as-applied,         Eighth   and     Fourteenth

Amendment challenge to the special issues in the pre-amended art.

37.071.   During the punishment phase, Penry offered mitigating

evidence of mental retardation and childhood abuse.                 The jury was

instructed in accordance with pre-amended art. 37.071. But despite

a request by Penry, it “was never instructed that it could consider

the evidence [he] offered ... as mitigating evidence and that it

could   give    mitigating     effect       to   that    evidence      in   imposing

sentence”.     Penry I, 492 U.S. at 320.

     The Court reiterated its holding from Lockett v. Ohio, 438

U.S. 586 (1978), and Eddings v. Oklahoma, 455 U.S. 104 (1982):                  the

Eighth and Fourteenth Amendments require a State to permit a jury

to “consider[] and giv[e] effect to evidence relevant to the

defendant’s background or character or to the circumstances of the

offense that mitigate against imposing the death penalty”.                    Penry

I, 492 U.S. at 318.       The Court then analyzed each of the three


                                        7
special issues and held:        the mitigating evidence presented by

Penry, particularly that of his retardation, had relevance beyond

the special issues; and the jury, in the absence of further

instruction, “was not provided with a vehicle for expressing its

‘reasoned   moral   response’   to   that   evidence   in   rendering   its

sentencing decision”. Id. at 328 (quoting California v. Brown, 479

U.S. 538, 545 (1987) (O’Connor, J., concurring)).

     Our court has read Penry I as follows:

            According to the [Penry I] Court, in the
            absence of an instruction defining the term
            “deliberately” in the first special issue, the
            jury may have been precluded from giving
            effect to their possible opinion that Penry’s
            mental retardation and history of childhood
            abuse made him “less able than a normal adult
            to control his impulses or to evaluate the
            consequences of his conduct” and thus less
            personally culpable.     With respect to the
            second issue [future dangerousness], the Court
            found that the mitigating evidence was a
            double-edged   sword:      it  mitigated   his
            culpability and at the same time it indicated
            that he would be dangerous in the future.
            Finally, the evidence was not relevant to the
            third issue [response to provocation by
            deceased]. The Court concluded that the state
            court erred by not instructing the jury that
            it could consider and give effect to the
            mitigating   evidence    of   Penry’s   mental
            retardation and childhood abuse by declining
            to impose the death sentence.

Lackey v. Scott, 28 F.3d 486, 488 (5th Cir. 1994) (quoting Penry I,

492 U.S. at 323; internal citations omitted), cert. denied, 513

U.S. 1086 (1995).




                                     8
     Texas retried Penry in 1990; he was again convicted of capital

murder.    During the punishment phase of that second trial, Penry

again proffered evidence of his mental retardation and childhood

abuse.    See Penry II, 121 S. Ct. at 1916.    In an effort to comply

with Penry I, and in addition to the three statutorily-mandated

special issues, the trial court gave a supplemental instruction,

directing the jury, in answering the special issues, to give effect

to any mitigating circumstances.       See id. at 1917.   (Likewise, as

noted, at Dinkins’ trial, and in the light of Penry I, a mitigating

evidence supplemental instruction was given.)

     Penry II held, however, that the supplemental instruction

failed to satisfy Penry I:   “that the jury be able to ‘consider and

give effect to [a defendant’s mitigating] evidence in imposing

sentence’”.    Id. at 1920 (emphasis and alteration in original;

quoting Penry I, 492 U.S. at 319).        The Court found useless any

attempt by the supplemental instruction to prompt the jurors “to

take Penry’s mitigating evidence into account in determining their

truthful answers to each special issue”, because, as Penry I had

held, “none of the special issues is broad enough to provide a

vehicle for the jury to give mitigating effect to the evidence of

Penry’s mental retardation and childhood abuse”.      Penry II, 121 S.

Ct. at 1921.     And, to the extent the instruction attempted to

inform the jury “it could simply answer one of the special issues

‘no’ if it believed that mitigating         circumstances made a life

                                   9
sentence ... appropriate ... regardless of its initial answers to

the questions”, id., the Court concluded the instruction, in

conjunction with the special issues, rendered the overall jury

charge internally contradictory, making it “logically and ethically

impossible for a juror to follow both sets of instructions”, id. at

1922.

     As noted, Penry II was rendered after the district court

denied habeas relief in the case at hand.          Accordingly, it granted

the COA concerning the mitigating evidence Dinkins had presented.

                                     B.

     Dinkins   claims   that   his        jury   received   a   supplemental

instruction “virtually identical” to that in Penry II; and that,

evaluated contextually, it failed to allow the jury to consider and

give effect to mitigating evidence of “his heroic and honorable

service in his country’s armed forces, numerous good deeds in his

community, and testimony concerning his good character”.             (Again,

Dinkins’ supplemental instruction was not “virtually identical” to

that in Penry II.)

                                     1.

     Dinkins does not address whether, for purposes of his Penry

claim, the cited mitigating evidence is “constitutionally relevant

mitigating evidence”.   As explained in Madden v. Collins, 18 F.3d

304 (5th Cir. 1994), cert. denied, 513 U.S. 1156 (1995):




                                     10
           To grant relief on a Penry claim, we must
           determine (1) that the proffered evidence was
           constitutionally relevant mitigating evidence,
           and, if so, (2) that the proffered evidence
           was beyond the “effective reach” of the
           jurors. Thus rejection of a Penry claim does
           not necessarily mean in every case that the
           jury was able to evaluate the proffered
           evidence fully and fairly.      A Penry claim
           rejection may also be based on the failure of
           the evidence relied upon by the petitioner to
           be   constitutionally   relevant    mitigating
           evidence.

Id. at   308 (citing Johnson v. Texas, 509 U.S. 350 (1993); footnote

omitted; second emphasis added).

     The necessity and logic of our court’s Penry I jurisprudence

— and specifically the two-step inquiry described in Madden — was

not altered by Penry II.   It simply held that the supplemental jury

instruction given in that case was not sufficient to correct the

specific deficiency recognized in Penry I.     See Penry II, 121 S.

Ct. at 1921-22.

     In order to determine whether the mitigating evidence is

“constitutionally relevant”, we must ask whether “the evidence

implicate[s] the basic concern of Penry ‘that defendants who commit

criminal acts that are attributable to a disadvantaged background,

or to emotional and mental problems, may be less culpable than

defendants who have no such excuse’”.      Madden, 18 F.3d at 307

(quoting Penry I, 492 U.S. at 319; emphasis added).    “In order to

present relevant evidence that one is less culpable for his crime,



                                 11
the evidence must show (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.) (alteration in original; internal citations omitted; quoting

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

aff’d on other grounds, 506 U.S. 461 (1993)), cert. denied, 516

U.S. 992 (1995); see also Turner v. Johnson, 106 F.3d 1178, 1189

(5th Cir. 1997) (“To qualify for the special exception to the scope

of the special issues carved out by Penry [I], proffered evidence

must demonstrate a ‘uniquely severe permanent handicap ... with

which the defendant was burdened through no fault of his own.’”

(quoting Graham, 950 F.2d at 1029)).

     Obviously, in this light, the cited mitigating evidence of

Dinkins’ military service, good deeds, and good character is not

Penry evidence.    Accordingly, his Penry claim ends there.           (Along

this line, Dinkins’ “claim fails for lack of nexus between the

mitigating evidence and the criminal act”.         Harris v. Johnson, 81

F.3d 535, 539 (5th Cir.), cert. denied, 517 U.S. 1227 (1996).)

                                      2.

     Even assuming, arguendo, Dinkins’ evidence is such evidence,

it was not placed beyond the effective reach of the jurors.               It

“could be considered by the jury to some extent under one of the

special   issues   —   particularly    the   [second]   issue   of   ‘future

                                      12
dangerousness’”.    Madden, 18 F.3d at 308 n.15.         Indeed, in Graham

v. Collins, 506 U.S. 461, 476 (1993), the Court stated it was “not

convinced that Penry [I] could be extended to cover” mitigating

evidence of “positive character traits” because such evidence is

already given adequate consideration in the special issues:

           Jurek is reasonably read as holding that the
           circumstance      of    youth     is     given
           constitutionally adequate consideration in
           deciding the special issues. We see no reason
           to regard the circumstances of Graham’s family
           background and positive character traits in a
           different light.

Id. at 476 (emphasis added).

      The Supreme Court has similarly held that other types of

mitigating evidence are given sufficient consideration by the

special issues:

           The evidence of petitioner’s youth ... falls
           outside Penry [I’s] ambit.     Unlike Penry’s
           mental retardation, which rendered him unable
           to learn from his mistakes, the ill effects of
           youth that a defendant may experience are
           subject to change and, as a result, are
           readily comprehended as a mitigating factor in
           consideration of the second special issue
           [future dangerousness].

Johnson v. Texas, 509 U.S. 350, 369 (1993).              See also Boyd v.

Johnson, 167 F.3d 907, 912 (5th Cir.) (“Evidence of good character

tends to show that the crime was an aberration, which may support

a   negative   answer   to   the   special   issue   regarding   the   future

dangerousness of the defendant.”), cert. denied, 527 U.S. 1055

(1999); Barnard v. Collins, 958 F.2d 634, 640 (1992) (“[E]vidence

                                      13
of ... good character, including evidence of ... carpentry skills,

work history, and familial responsibility and support[,] ... does

not require a special instruction under Penry [I]”.), cert. denied,

506 U.S. 1057 (1993). (Nor does such evidence present the “double-

edged” potential of concern in Penry I and II.)

                                3.

     Dinkins’ claim fails for a third reason: it is Teague-barred.

See Teague v. Lane, 489 U.S. 288 (1989).    “As none of [Dinkins’]

mitigating evidence was truly doubled-edged in a way that Penry’s

evidence was, and as [Dinkins’] evidence could be considered by the

jury under the ... second special issue, the relief [Dinkins] seeks

was not ‘dictated’ by precedent and thus constitutes a ‘new rule’

under Teague.”   Madden, 18 F.3d at 308 n.15.

                               III.

     For the foregoing reasons, the denial of habeas relief is

AFFIRMED.   Dinkins’ counsel is cautioned that repetition of the

type of factual misstatements noted in this opinion may result in

the imposition of sanctions.

                                                       AFFIRMED




                                14
