                 Cite as: 575 U. S. ____ (2015)            1

                     BREYER, J., dissenting

SUPREME COURT OF THE UNITED STATES
         LESTER LEROY BOWER, JR. v. TEXAS
  ON PETITION FOR WRIT OF CERTIORARI TO THE COURT OF 

              CRIMINAL APPEALS OF TEXAS

              No. 14–292.   Decided March 23, 2015


  The petition for a writ of certiorari is denied.
  JUSTICE BREYER, with whom JUSTICE GINSBURG and
JUSTICE SOTOMAYOR join, dissenting from the denial of
certiorari.
  On April 28, 1984, petitioner Lester Leroy Bower was
convicted in a Texas court of murdering four men. Each of
the four men had been shot multiple times. Their bodies
were left in an airplane hangar, and an ultralight aircraft
was missing.
  The State sought the death penalty. Bower introduced
evidence that was, in his view, mitigating. He noted that
he was 36 years old, married, employed full-time, and a
father of two. He had no prior criminal record. Through
the testimony of Bower’s family members and friends, the
jury also heard about Bower’s religious devotion, his com­
mitment to his family, his community service, his concern
for others, his even temperament, and his lack of any
previous violent (or criminal) behavior.
  At the time of Bower’s sentencing, Texas law permitted
the jury to consider this mitigating evidence only insofar
as it was relevant to three “special issues”: (1) whether the
conduct of the defendant that caused the death of the four
victims was committed deliberately and with the reason-
able expectation that the victims’ deaths would result; (2)
whether there was a probability that the defendant would
continue to commit violent criminal acts, and as such
would be a continuing threat to society; and (3) whether
the defendant acted in response to provocation. See Tex.
Code Crim. Proc. Ann., Art. 37.071(b) (Vernon 1981 and
2                    BOWER v. TEXAS

                    BREYER, J., dissenting

Cum. Supp. 1986). Since the third issue was irrelevant in
Bower’s case, the court asked the jury to consider only the
first two. Because the jury answered “yes” to both, the
trial judge automatically imposed a death sentence, as
required by then-controlling Texas law. Arts. 37.071(c)–
(e).
   Bower appealed his case, lost, sought state postconvic­
tion relief, lost, appealed that loss, and lost again. See
Bower v. Texas, 769 S. W. 2d 887 (Tex. Crim. App.), cert.
denied, 492 U. S. 927 (1989); Ex parte Bower, 823 S. W. 2d
284 (Tex. Crim. App. 1991), cert. denied, 506 U. S. 835
(1992). But a week before Bower’s conviction became
final, this Court decided in Penry v. Lynaugh, 492 U. S.
302 (1989), that Texas’ special issues procedure was un­
constitutional. Specifically, the Court held that Texas’
procedure impermissibly prevented the jury from consider­
ing or acting upon potentially mitigating evidence. The
Court wrote that a State cannot
    “consistent with the Eighth and Fourteenth Amend­
    ments, prevent the sentencer from considering and
    giving effect to evidence relevant to the defendant’s
    background or character or to the circumstances of the
    offense that mitigate against imposing the death pen­
    alty.” Id., at 318.
   Penry himself had offered evidence of mental retarda­
tion and childhood abuse. This Court decided that Texas’
special issues, while allowing the jury to decide if Penry
might commit violent crimes in the future, did not give the
jury the constitutionally requisite opportunity to consider
whether Penry’s mental retardation or childhood abuse
constituted significantly mitigating evidence regardless.
It “is not enough,” the Court wrote,
    “simply to allow the defendant to present mitigating
    evidence to the sentencer. The sentencer must also be
    able to consider and give effect to that evidence in im­
                 Cite as: 575 U. S. ____ (2015)            3

                     BREYER, J., dissenting

    posing [a] sentence. Only then can [the court] be sure
    that the sentencer has treated the defendant as a
    uniquely individual human bein[g] and has made a re­
    liable determination that death is the appropriate
    sentence.” Id., at 319 (citations and internal quota­
    tion marks omitted; last alteration in original).
   After this Court decided Penry, Bower filed a petition for
habeas corpus in Federal District Court. He argued,
among other things, that, given Penry, his own sentencing
proceeding was constitutionally deficient. After a hearing,
the court denied his petition and also refused to issue a
certificate of appealability on the Penry issue. The Fifth
Circuit affirmed the District Court’s denial of a certificate
of appealability, reasoning that, in Bower’s case, the sec­
ond special issue (about future dangerousness) sufficiently
permitted the jury to take account of Bower’s mitigating
evidence. Bower v. Dretke, 145 Fed. Appx. 879, 885, 887
(2005). In doing so, the Circuit referred to several of its
earlier decisions reaching the same conclusion in similar
circumstances. See ibid. (citing Coble v. Dretke, 417 F. 3d
508 (2005); Boyd v. Johnson, 167 F. 3d 907 (1999); Bar-
nard v. Collins, 958 F. 2d 634 (1992)). Bower then sought
certiorari here, but we denied his petition. Bower v.
Dretke, 546 U. S. 1140 (2006).
   The Fifth Circuit subsequently changed its mind about
the meaning of Penry. And, in doing so, it specifically said
that it had been wrong about Bower’s Penry claim. See
Pierce v. Thaler, 604 F. 3d 197, 210, n. 9 (2010). It said
this not in Bower’s case, but in an unrelated one. At that
point, Bower’s case was no longer in federal court. So
Bower could not take advantage of the Fifth Circuit’s
change of mind; he had already brought a subsequent
application for postconviction relief in Texas court, argu­
ing (among other things) that Texas had used an unconsti­
tutional sentencing procedure in his case.
4                     BOWER v. TEXAS

                    BREYER, J., dissenting

    The Texas trial court decided that Bower was right.
Conclusions of Law ¶97 in Ex parte Bower, No. 33426–B
(15th Jud. Dist. Ct., Grayson Cty., Dec. 10, 2012), App. to
Pet. for Cert. 127 (hereinafter Conclusions of Law). It
issued an opinion requiring a new sentencing proceeding.
See ibid. But the State appealed, and the Texas Court of
Criminal Appeals reversed the trial court. See Order in
Ex parte Bower, No. WR–21005–02, etc. (Tex. Ct. Crim.
App., June 11, 2014), App. to Pet. for Cert. 1. It explained
that “unlike the double-edged evidence in Penry . . . , the
mitigating evidence presented by [Bower] during the
punishment phase of his trial—evidence of his good and
non-violent character, his good deeds, and the absence of a
prior criminal record—was not outside the scope of special
issues given.” Id., at 4 (citing Ex parte Bower, 823 S. W.
2d, at 286). Because Bower’s evidence was not “double­
edged” as Penry’s had been, the Texas Court of Criminal
Appeals believed that the use of the special issues proceed­
ing in Bower’s sentencing proceeding did not constitution­
ally entitle him to resentencing. See ibid.
    Bower now asks us to grant certiorari and to reverse the
Texas Court of Criminal Appeals. In my view, we should
do so. Penry’s holding rested on the fact that Texas’ for­
mer special issues did not tell the jury “what ‘to do if it
decided that [the defendant] . . . should not be executed’ ”
because of his mitigating evidence. Abdul-Kabir v. Quar-
terman, 550 U. S. 233, 256 (2007) (quoting Penry, supra, at
324). Bower’s sentencing procedure suffered from this
defect just as Penry’s did. The distinction that the Texas
court drew between Penry’s and Bower’s evidence is irrel­
evant. Indeed, we have expressly made “clear that Penry
. . . applies in cases involving evidence that is neither
double edged nor purely aggravating, because in some
cases a defendant’s evidence may have mitigating effect
beyond its ability to negate the special issues.” 550 U. S.,
at 255, n. 16. The trial court and the Fifth Circuit both
                 Cite as: 575 U. S. ____ (2015)           5

                    BREYER, J., dissenting

recognized that Bower’s Penry claim was improperly re­
jected on that basis. See Conclusions of Law ¶97; Pierce,
supra, at 210, n. 9.
   The Constitution accordingly entitles Bower to a new
sentencing proceeding. I recognize that we do not often
intervene only to correct a case-specific legal error. But
the error here is glaring, and its consequence may well be
death. After all, because Bower already filed an applica­
tion for federal habeas relief raising his Penry claim, the
law may bar him from filing another application raising
this same issue. See 28 U. S. C. §2254(b)(1). In these
circumstances, I believe we should act and act now. I
would grant the petition and summarily reverse the judg­
ment below. I dissent from the Court’s decision not to
do so.
