              IN THE UNITED STATES COURT OF APPEALS

                         FOR THE FIFTH CIRCUIT



                             No. 98-11014




DAVID ALLEN GARDNER
                                                 Petitioner-Appellant,


versus



GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION

                                                 Respondent-Appellee.



                        - - - - - - - - - -
          Appeals from the United States District Court
                for the Northern District of Texas

                         - - - - - - - - - -
                            April 4, 2001


Before JOLLY, WIENER, and STEWART, Circuit Judges.

WIENER, Circuit Judge:

     Petitioner-Appellant David Allen Gardner appeals the district

court’s denial of his petition for a writ of habeas corpus pursuant

to 28 U.S.C. § 2254. He was convicted of capital murder in the

course of a kidnaping and was sentenced to death. After exhausting

his remedies at the state level, Gardner applied for a writ of

habeas corpus which the district court denied.        We granted a

Certificate of Appealability (COA) limited to determining whether
the State’s psychiatrists’ pre-examination warnings to Gardner were

sufficient     to    ensure   that      his   consent   to     be   examined   was

"informed," thereby negating any potential violation of his Fifth

Amendment right against compulsory self-incrimination that might

otherwise have resulted from the punishment phase admission —— over

timely objection —— of the assertedly prejudicial testimony of the

psychiatrist who conducted that exam.              As we conclude that this

constitutional right was violated by the sentencing-phase admission

of the testimony of the psychiatrist who examined Gardner on behalf

of the State of Texas and that Gardner suffered prejudice from that

violation, we reverse the decision of the district court, grant

Gardner’s petition for a writ of habeas corpus, and remand for

entry of an appropriate judgment vacating his sentence and allowing

the    State   a    reasonable   time    within   which   to    conduct   a    new,

constitutionally valid sentencing proceeding or, alternatively, to

resentence Gardner to life imprisonment in conformity with Texas

law.

                         I.   Facts and Proceedings

       The facts of Gardner’s crime of conviction are set forth in

the opinion of the Texas Court of Criminal Appeals (CCA) disposing

of Gardner’s direct appeal.1         Gardner stopped and picked up a pair

of fourteen-year old runaway hitchhikers, turned down a gravel

road, and pulled off beside a bridge.             After he told the teenagers



       1
           Gardner v. State, 733 S.W.2d 195, 197-98 (Tex. Crim. App.
1987).

                                          2
to get out of the car, the three walked down an embankment where

Gardner stabbed the male numerous times and left him for dead, then

took the female to a nearby lake where he stabbed her numerous

times, hit her in the head with a rock, and abandoned her as well.

The male lived but the female died.

     The state procedural history of Gardner’s case is highly

significant to our consideration today, so we review it in detail.

During the sentencing phase of Gardner’s murder trial, the State

introduced only two evidentiary matters:           (1) evidence that, some

years prior to committing the instant crime, Gardner had fled the

state of Kentucky after being released on bond while awaiting trial

on two charges of theft and (2) testimony of Dr. Clay Griffith, who

had, pursuant to a court order, conducted a pre-trial psychiatric

evaluation   of   Gardner.   After       telling   the   jury   that   he   had

testified in “[p]robably three thousand” criminal trials,2 Dr.

Griffith stated with “one hundred percent certainty” that, in his

professional opinion, Gardner would “commit violent acts in the

future,” he was “super dangerous, and [he would] kill [again] given

any chance at all.”     Dr. Griffith’s testimony also included his

professional opinion that Gardner would “continue to be violent

even if placed in incarceration; and this would not prevent his



     2
       Recently, a “brief search of the cases” revealed that, “in
those cases which have produced published opinions, Dr. Griffith
has testified ‘yes’ to the . . . special issue [of future
dangerousness] on twenty-two occasions, and ‘no’ on zero
occasions.” Flores v. Johnson, 210 F.3d 456, 461 n. 6 (5th Cir.
2000) (Emilio M. Garza, J., concurring).

                                     3
violence and his brutality.” And, added Dr. Griffith, Gardner

“showed absolutely no remorse through the interview” and his

tearful in-court confession of the murder was not credible because

Gardner could “turn tears on and off” at will.

     After    his    objection    to   the    admission   of   Dr.    Griffith’s

testimony    was    overruled    and   the    psychiatrist     was   allowed    to

testify, defense counsel cross-examined Dr. Griffith extensively

and also presented three favorable character witnesses on Gardner’s

behalf.    Two of Gardner’s former co-workers testified that he was

a good employee and that they had never seen him exhibit any

improper or violent conduct. The chief jailer of the Parker County

Sheriff’s Office, where Gardner was held while awaiting trial,

testified that Gardner was a model prisoner who had never caused

any problems.

     The    record   shows   that,     even    though   Gardner      was   already

represented by defense counsel, his attorney was not present either

when Gardner consented to the psychiatric examination or at any

time during the course of the examination itself.               In fact, it is

clear from the record that defense counsel had no knowledge that

his client was to be examined and that the State made little or no

effort to inform counsel in advance.3


     3
       In its opinion regarding Gardner’s direct appeal, the CCA
stated that:

     On September 29, 1980, pursuant to a motion by the
     State, the trial court signed an order for appellant to
     be examined by Dr. Griffith and Dr. Grigson. [Gardner’s
     defense counsel, Ed] Todd received a copy of this order

                                        4
     During his testimony at the punishment phase of Gardner’s

trial, Dr. Griffith stated that he informed

     the Defendant . . . what he was coming for, for a
     psychiatric examination; that this was ordered by Judge
     Hopkins. We informed him that [1] a report would have to
     be sent to the Court stating our findings so far as
     whether he was competent to stand trial, whether he, in
     our opinion, was sane or insane at the time of the
     alleged offense; [2] that in the State of Texas, there is
     no confidentiality so that anything that he might say
     could be used against him, or could be used for him at
     some later date in the courtroom (emphasis added).

     Counsel for Gardner timely objected to the admission of Dr.

Griffith’s testimony at the punishment phase.       In Gardner’s direct

appeal, counsel contested the admission of Dr. Griffith’s testimony

on the grounds that he had unlawfully induced Gardner’s consent by

telling him that the examination “could be used against him or

could be used for him at some later date in the courtroom.”

Unpersuaded,   the   CCA   affirmed   Gardner’s   conviction   and   death

sentence.

     Gardner petitioned for a writ of habeas corpus in state court.

He reiterated his objection to the admission of Dr. Griffith’s

testimony, this time emphasizing that the warnings given prior to

the examination were constitutionally deficient under Estelle v.




     around 10 a.m. on September 30, 1980.   He immediately
     called the Parker County Jail and was informed that
     appellant had already left for Dallas. Gardner v.
     State, 733 S.W.2d at 198-99.

Todd was thus not able to be present at the time of the
psychiatric examinations or at the time when Drs. Griffith and
Grigson made their warnings to Gardner.

                                      5
Smith4 because he was not adequately informed that the results of

the exam could be used against him (1) during the punishment phase

of the trial (2) to secure the death penalty.5     The state trial

court, after entering its findings of fact and conclusions of law,

recommended that habeas relief be denied.   The CCA denied relief,

stating that Gardner had already raised his Estelle v. Smith claim

on direct appeal.

     Gardner filed a second state habeas petition, stressing that

he had not raised his Estelle v. Smith claim on direct appeal and

that the earlier decision of the CCA was therefore erroneous.   As

a result, the CCA ordered a state trial court to conduct an

evidentiary hearing to clarify the content of the warnings given to

Gardner by Dr. Griffith prior to the psychiatric examination.   At

the hearing (held in 1995, fifteen years after Dr. Griffith’s




     4
         451 U.S. 454 (1981).
     5
       Dr. Griffith’s warning to Gardner can reasonably be
interpreted as having a bifurcated meaning. He first told
Gardner that “a report would have to be sent to the Court”
regarding whether Gardner was “competent to stand trial.” That
statement is reasonably susceptible of advising Gardner that the
trial judge alone could use the examination report and then only
to determine competency to stand trial. Dr. Griffith then went
on to tell Gardner that “anything he might say could be used
against him . . . at some later date in the courtroom.” That
statement is reasonably susceptible of advising Gardner that his
statements only —— and not the examination results or Dr.
Griffith’s testimony —— could be used for or against Gardner in
court. Nowhere in Dr. Griffith’s warnings is it even implied
that the results of the psychiatric examination or the
psychiatrist’s testimony could be used against Gardner at trial,
let alone (1) at the sentencing phase (2) to secure the death
penalty.

                                6
psychiatric examination of Gardner), Dr. James P. Grigson,6 who had

aided Dr. Griffith in conducting the examination of Gardner,

testified   to   what   he   (Grigson)   had   told   Gardner   before   the

examination:

            Prior to the beginning of the examination I
            introduced myself, my name, explained that I
            was   a  medical   doctor,   a   psychiatrist.
            Introduced Dr. Griffith. Also explained that
            he was a medical doctor, also a psychiatrist.
            I did read him the court order signed by Judge
            Hopkins. And then I explained to him that it
            was not confidential because we would be
            sending back a report discussing it.         I
            explained to him that the motion had been
            filed by the district attorney . . . to have
            the examination.     And the purpose was to
            examine him in three areas, competency,
            sanity, and dangerousness. And I explained to
            him at that time that competency did mean


     6
       Dr. Grigson's extensive participation in capital
punishment cases has earned him notoriety, including the titles
"Dr. Death” and “the hanging psychiatrist." See, generally, Ron
Rosenbaum, Travels With Dr. Death, Vanity Fair, May 1990, at 206
(recounting the author’s travels with Dr. Grigson over the course
of three days during which Dr. Grigson testified at three
sentencing phase hearings; all three men were sentenced to
death). “Grigson's fame began with his testimony in the trial of
Randall Dale Adams, where Grigson testified that he was one
hundred percent certain Adams would kill again, and after it was
revealed that the evidence against Adams was falsified by the
police, Adams was released as innocent. (Emphasis added). After
Grigson testified in hundreds of capital sentencing hearings, the
[American Psychiatric Association] and the Texas Society of
Psychiatric Physicians ousted him from their organizations for
‘arriving at a psychiatric diagnosis without examining the
individuals in question and for indicating, while testifying as
an expert witness, that he could predict with 100 percent
certainty that the individuals would engage in future violent
acts.’" Flores, 210 F.3d at 467 n. 16 (citing Laura Beil, Groups
Expel Psychiatrist Known for Murder Cases, The Dallas Morning
News, July 26, 1995, at 21A; Dr. Death Loses 2 Memberships Over
Ethics Accusations, The Fort- Worth Star-Telegram, July 27, 1995,
at A25).


                                    7
              whether or not he had sufficient present
              mental ability to consult with his attorney
              with   a   reasonable   degree   of   rational
              understanding, and whether he had a factual as
              well as a rational understanding regarding the
              proceedings against him.       He told me he
              understood that. And then I explained sanity
              or insanity was defined as whether or not he
              was suffering from a severe mental disease or
              defect that prevented him from knowing the
              difference between right and wrong.     And he
              understood that.    I told him dangerousness
              meant whether or not he represented a
              continuing threat to society (emphasis added).

       In denying Gardner’s habeas petition for a second time, the

CCA ruled that his Estelle v. Smith claim was procedurally barred

and, in the alternative, that it was without merit.7             Gardner filed

a motion for rehearing, pointing out that the CCA had again

incorrectly recounted the procedural history to come up with the

conclusion of procedural bar.               In apparent recognition of its

mistake, the CCA granted Gardner’s motion and issued a new opinion

which corrected the factual errors of the previous opinion; the

court did not, however, formally withdraw its earlier opinion,

instead leaving it “on the books.”

       The    CCA’s   new   opinion   reaffirmed   its   prior    ruling   that

Gardner’s Estelle v. Smith claim was procedurally barred, but the

court failed to address the merits of his constitutional claim at

all.       Inasmuch as (1) all parties to the case agree that the

procedural bar rule used by the CCA was novel and thus inapplicable

on federal habeas review, and (2) the perfunctory discussion of the



       7
           Ex parte Gardner, 959 S.W.2d 189 (Tex. Crim. App. 1996).

                                        8
merits of Gardner’s Estelle v. Smith complaint was never withdrawn,

the CCA’s scant reasoning and ruling on the merits is what is

before us today.

     Having exhausted the remedies available at the state level,

Gardner filed a petition for a writ of habeas corpus in federal

district court, which was denied.    He appealed that decision to

this court, and we granted Gardner’s application for a COA on his

Fifth Amendment Estelle v. Smith claim.

                          II.   Analysis

A.   Standard of Review

     As Gardner filed his federal petition for habeas review in

1998, well after the effective date of the 1996 Antiterrorism and

Effective Death Penalty Act (“AEDPA”), we review his petition under

the standards specified in that act.8      The AEDPA forbids us to

issue a writ of habeas corpus with respect to “any claim that was

adjudicated on the merits in State court proceedings” unless the

state court’s adjudication of that claim resulted in “a decision

that was contrary to, or involved an unreasonable application of,

clearly established Federal law, as determined by the Supreme Court


     8
       Gardner contends that the second CCA opinion addressing
his habeas petition superceded the first opinion and withdrew
that earlier opinion. Thus, as the second opinion did not
address the merits of his Estelle v. Smith claim, we should
review that claim de novo. We disagree. The second opinion
supplemented and did not replace the first opinion, leaving in
place that opinion’s merits ruling. Thus, that portion of the
first opinion that addresses Gardner’s Estelle v. Smith claim
remains a valid “decision on the merits” issued by a state court
for the purposes of AEDPA. As such, we must review Gardner’s
claim under the standard set forth in that statute.

                                 9
of the United States . . . ; or resulted in a decision that was

based on an unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.”9                      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.”10        A    decision       is     an        unreasonable

application of federal law “if the state court identifies the

correct governing legal principle . . . but unreasonably applies

that principle to the facts of the prisoner’s case.”11                            Factual

findings of the state court are presumed to be correct, so we 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.’”12

B.   The Estelle v. Smith Claim

     Gardner claims that his Fifth Amendment right against self-

incrimination, as interpreted by the Supreme Court in Estelle v.
Smith, was violated by the introduction of Dr. Griffith’s testimony

at the punishment phase of his trial.             In Smith, the Supreme Court



     9
          28 U.S.C. § 2254(d).
     10
          Williams v. Taylor, 529 U.S. 362, 413 (2000).
     11
          Id.
     12
       Chambers v. Johnson, 218 F.3d 360, 363 (5th Cir. 2000)
(quoting 28 U.S.C. § 2254(d)(2)).

                                        10
“held that a capital defendant’s right against compelled self-

incrimination    precludes   the   state   from   subjecting   him   to   a

psychiatric examination concerning future dangerousness without

first informing the defendant that he has a right to remain silent

and that anything he says can be used against him at the sentencing

proceeding.”13   The warnings required under Miranda v. Arizona,14 ——

“including that [the defendant] has ‘a right to remain silent’ and

that ‘anything said can and will be used against the individual in

court’”15 —— are not sufficient to satisfy the more stringent

requirements set forth in Estelle.16 To apprise a capital defendant

fully of his Fifth Amendment rights before subjecting him to a

court-ordered psychiatric examination, the defendant must be told

that it will “be used to gather evidence necessary to decide

whether, if convicted, he should be sentenced to death.”17                We

conclude that the warnings provided by Drs. Griffith and Grigson,

whether viewed separately or in combination, were insufficient

fully to apprise Gardner of his constitutional rights; moreover, we

conclude that the CCA decision that held those warnings to be




     13
       Powell v. Texas, 492 U.S. 680, 681 (1989) (citing
Estelle, 451 U.S. at 461-469) (emphasis added).
     14
          384 U.S. 436 (1966).
     15
       Estelle, 451 U.S. at 467 (quoting Miranda v. Arizona, 384
U.S. 436, 467-469 (1966)).
     16
          Id. at 466-67.
     17
          Id.

                                   11
sufficient was an “unreasonable application of existing federal

law.”

     The CCA made a factual determination that Dr. Griffith had

made the warning in 1980 that he testified to during Gardner’s 1981

trial, and that Dr. Grigson had made his warning in 1980 that he

testified    at     the    1995     evidentiary   hearing    to   having    made.

Although, given the vast number of trials at which Dr. Grigson

testified, we find remarkable his ability to remember his specific

warning to Gardner some fifteen years after the fact, we are

constrained    by    the    AEDPA    to   conclude   that   the   CCA’s    factual

findings that the doctors “said what they said they said” are not

unreasonable and thus must be accorded the specified deference.

     On the strength of these factual findings, the CCA made two

rulings on the merits of Gardner’s Smith claim.              In the first, the

CCA held that Dr. Griffith’s warnings to Gardner that statements he

would make in the course of the examination “could be used against

him . . . at some later date in the courtroom” “sufficiently

informed [Gardner] that his statements could be used against him at
the punishment stage of his capital murder trial since that went on

‘in the courtroom’” and that “a warning that a statement ‘may be

used against’ a defendant conveys that the statement could be used

at the punishment stage of a capital murder trial.”18                 The CCA’s

second ruling added that Dr. Grigson’s warnings, in combination

with those given by Dr. Griffith, were clearly sufficient under


     18
          Ex parte Gardner, 959 S.W.2d at 192.

                                          12
Estelle v. Smith.19           At the 1995 evidentiary hearing, Dr. Grigson

testified         that in 1980 he had informed Gardner that he was being

examined for “dangerousness” which, Grigson explained to Gardner,

meant “whether          or    not   he   represented   a   continuing    threat    to

society.”         The   CCA    concluded    that,   in     conjunction   with     Dr.

Griffith’s statement, “this more than complies with Estelle v.

Smith.”20

       As noted, the AEDPA mandates that habeas petitions be granted

only if the State court adjudication of the claim either “resulted

in a        decision that [1] was contrary to, or [2] involved an

unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States.”21                        Being

disjunctive, each of these two prongs is to be accorded independent

meaning, so habeas relief can be granted if the prisoner prevails

on either prong.22           Although we cannot say that the decision of the

CCA was “contrary to” the law as established in Estelle v. Smith

because the CCA clearly did apply the correct legal rule to the

pertinent facts, the CCA’s application of that rule obviously
produced an incorrect result. Thus our relevant inquiry is whether

the CCA’s application “of clearly established Federal law, as


       19
       The CCA did not evaluate Dr. Grigson’s warning for its
stand-alone sufficiency; only what it added in combination with
Dr. Griffith’s warning.
       20
            Id.
       21
            28 U.S.C. § 2254(d)(1).
       22
            Williams, 529 U.S. at 404-05.

                                            13
determined by the Supreme Court of the United States”23 produced a

result that is not merely wrong but is so wrong that it is

“unreasonable.”      We conclude that it did.

       The Supreme Court, in the recent case of Williams v. Taylor,24

clarified the standard of review of habeas petitions under the

AEDPA.      In her majority opinion, Justice O’Connor does not purport

to define the term “reasonable” but does offer useful guidance.

Her opinion first makes clear that the standard is an objective

one, specifically rejecting25 our previously employed, subjective

“all    reasonable       jurists”   standard.26     She   then    describes   a

relatively broad range along the “reasonableness” continuum at any

point on which a state court decision might be held to be an

“unreasonable application of Federal law”: To be unreasonable, the

state decision must be more than merely incorrect but can be

something less than the stringent “all reasonable jurists” standard

(under which the mere fact that reasonable jurists may disagree

about the result requires the state court decision to be upheld).27

       Although     we     have     addressed     Williams’s     “unreasonable
application” rule on several occasions, we have done little to



       23
            28 U.S.C. § 2254(d)(1).
       24
            529 U.S. 362 (2000)
       25
            Williams, 529 U.S. at 409-10.
       26
       We expressed this standard in Drinkard v. Johnson, 97
F.3d 751, 769 (5th Cir. 1996).
       27
            Id.

                                        14
clarify the Supreme Court’s standard in that case.28 Other circuits

have addressed the issue too and in several instances have offered

helpful clarifications of the Williams standard. For instance, the

Tenth Circuit, after noting the importance of the objective nature

of the standard, held that “the fact that one court or even a few

courts have applied the precedent in the same manner to close facts

does not make the state court decision ‘reasonable.’”29

     The Ninth Circuit in Van Tran v. Lindsey,30 held that the

Williams “unreasonable application” standard “generally allows for

reversals only where the court of appeals is left with a ‘definite

and firm conviction’ that an error has been committed.”31    As the

Van Tran court went on to explain,

            we must reverse a state court’s decision as
            involving an ‘unreasonable application’ of
            clearly established federal law when our
            independent review of the legal question does
            not merely allow us ultimately to conclude
            that the petitioner has the better of two
            reasonable legal arguments, but rather leaves
            us with a ‘firm conviction’ that one answer,
            the one rejected by the [state] court, was
            correct and the other, the application of the


     28
        See, e.g., Chambers, 218 F.3d at 362; Perry v. Johnson,
215 F.3d 504, 507 (2000); Hill v. Johnson, 210 F.3d 481, 485
(2000).
     29
          Valdez v. Ward, 219 F.3d 1222, 1230 (10th Cir. 2000).
     30
          212 F.3d 1143 (9th Cir. 2000)
     31
       Id. at 1153 (citation omitted). We note that this 9th
Circuit language is identical to our definition of clear error ——
next to de novo, our least deferential standard of review. Adams
v. Unione Mediterranea Di Sicurta, 220 F.3d 659, 670 (5th Cir.
2000) (citing Anderson v. City of Bessemer City, 470 U.S. 564,
573-74 (1985)).

                                  15
            federal law    that   the    court   adopted,   was
            erroneous.32

     We also note another insightful observation made in Van Tran:

The Ninth Circuit emphasized that in Williams the Supreme Court

            rejected    the interpretation,   adopted   in
            various forms by the Fourth, Fifth, Seventh,
            and    Eleventh   Circuits,    that    defines
            reasonableness on the basis of whether
            ‘reasonable jurists’ could disagree about the
            result reached by the state court. Instead,
            the     Court   adopted     an    ‘objectively
            unreasonable’ standard, employing language
            used in decisions by the Third and Eight
            Circuits.33

This is doubly significant when viewed in the context of the Third

and Eighth Circuits’ adoption of the same test as Williams because

both circuits found the “reasonable jurists” standard to be too

deferential to state courts, clearly implying that the Supreme

Court preferred a more stringent habeas review of state court

decisions.

     Although Williams teaches that state court decisions should

not be reversed merely because they are incorrect —— i.e., just

because we would have reached a different conclusion —— Justice
O’Connor‘s opinion makes equally clear that neither should such

decisions be upheld when we conclude that the state court has not

just misapplied the law to the facts but has done so in an

objectively unreasonable manner.        Stated another way, even though

the AEDPA requires the federal courts to show more deference to


     32
          Van Tran, 212 F.3d at 1153-54 (citation omitted).
     33
          Id. at 1150-51 (citations omitted).

                                   16
state court decisions than they would in a de novo review, this

cannot be interpreted to mean that an “objectively unreasonable”

application of federal law should be allowed to stand.              Even though

we cannot reverse a decision merely because we would reach a

different outcome, we must reverse when we conclude that the state

court decision applies the correct legal rule to a given set of

facts     in   a   manner   that   is   so   patently   incorrect    as   to   be

“unreasonable.”

     That is clearly the case here.            The CCA first held that Dr.

Griffith’s warning to Gardner that his statements during the

examination “could be used against him . . . at some later date in

the courtroom” “sufficiently informed [Gardner] that his statements

could be used against him at the punishment stage of his capital

murder trial since that went on ‘in the courtroom.’”34 This warning

—— given well in advance of trial, to a layman with no legal

training, out of the presence of his counsel —— simply cannot be

stretched to the point of having “apprise[d] [Gardner] of his

rights” and allowed him “knowingly [to] decide to waive them.”35
Not, at least, when the rights in question are those recognized in

Estelle v. Smith as clearly requiring warnings to the defendant

that the adverse use in question means use (1) at the punishment

stage (2) to accomplish the state’s goal of obtaining the death

penalty.


     34
          Ex parte Gardner, 959 S.W.2d at 192.
     35
          Estelle, 451 U.S. at 469.

                                        17
     Many events take place in a courtroom during the protracted

course    of   a   criminal   proceeding   ——   the   arraignment,   various

evidentiary hearings, the guilt/innocence phase of the trial ——

before and in addition to the sentencing phase of the trial.            Such

a vague reference —— “in the courtroom” —— cannot possibly suffice

to fulfill Estelle v. Smith’s strict requirement that the defendant

be informed that his words and the results of the psychiatric

examination can and will be used against him at the sentencing

phase to secure the death penalty.          In like manner, the general

phrase “may be used against him” in no way narrows or identifies

the point in the criminal proceeding at which Gardner’s statements

and the results of the examination could and would be used against

him or for what specific purpose.

     We repeat for emphasis that Dr. Griffith’s vague and ambiguous

words could reasonably be interpreted by an uninitiated layman to

mean that (1) the results of the examination could be used (a) by

the court (no mention of the prosecution) (b) to determine mental

competency to stand trial; and (2) the defendant’s own statements
(no mention of the test results or the examining psychiatrist’s

opinions) could be used against him in court.36 The CCA then

supplemented its holding with an alternative conclusion:               When

taken together, the warnings given by Drs. Griffith and Grigson

gave Gardner adequate notice of his rights under Estelle v. Smith.

Although Dr. Grigson’s warnings —— specifically his reference to


     36
          See supra note 4.

                                     18
determining       Gardner’s        “dangerousness,”     as    explained   to    mean

whether Gardner “represented a continuing threat to society” ——

might be viewed by some as slightly more informative than those

given by Dr. Griffith, it is patently unreasonable to say that they

meet the standards of Estelle v. Smith.              As Dr. Grigson testified,

his warnings were gleaned from the language of opinions authored by

a Texas state court judge and this court.               An experienced defense

counsel      or   even,   perhaps,      a   career   criminal    well-versed      in

“jailhouse legalese,” might recognize this language as a reference,

however oblique, to the arcane terms of art in the Texas special

issue of “future dangerousness” which in turn signal reference to

the penalty phase of a capital trial.                To most laymen, however,

particularly unsophisticated and undereducated members of society

with    no   legal    training     or   experience,37   and    unaccompanied     by

counsel, this language cannot reasonably be read to satisfy even

minimally the strictures of Estelle v. Smith.                  Indeed, if layman

such as Gardner could be expected to grasp the hidden significance

of such legal “buzz words” and thus be deemed to have been
adequately        informed    of   their     constitutional     rights    in    such

settings, then prophylactic warnings such as that mandated by

Estelle      v.   Smith   would    be   wholly   unnecessary.       We    can   only

speculate that the CCA’s extensive treatment of procedural bar,

coupled with the relatively short shrift that it gave the Estelle


       37
       There is no indication in the record that Gardner
possessed even a minimal jailhouse grasp of criminal or
constitutional law.

                                            19
v.    Smith      issue,   might   account     for    that    court’s      otherwise

inexplicable conclusion that the “warnings” given by Drs. Griffith

and    Grigson,      long    before    the     commencement        of     even     the

guilt/innocence phase of Gardner’s trial, were sufficient under

Estelle v. Smith even though neither doctor mentioned or even

hinted at the possibility of the introduction of the results of the

examination at the punishment phase of the trial to secure a

sentence of death.         Those elements are so clearly required by the

Supreme Court in Estelle v. Smith and its progeny that they are

indispensable elements to a conclusion of informed consent, itself

an    indispensable       requisite   for    the    waiver    of   such    a     basic

constitutional right.

C.    Prejudice

       The State nevertheless contends that, even if the warnings

given by Drs. Griffith and Grigson were inadequate to meet the

Estelle v. Smith standard, Gardner was not prejudiced by the

admission of Dr. Griffith’s testimony at sentencing.                    We are well

aware that we cannot grant habeas relief to a petitioner unless he
can show that he suffered “actual prejudice” from the trial error

at    issue.38      Actual    prejudice      results   when    “the      error     had

substantial and injurious effect or influence in determining the

jury’s verdict.”39        Texas argues that Gardner was not prejudiced by


       38
       Brecht v. Abrahamson, 507 U.S. 619, 637 (1993); Woods v.
Johnson, 75 F.3d 1017, 1019 (5th Cir. 1996) (applying the Brecht
standard for harmless error to an Estelle v. Smith claim).
       39
            Kotteakos v. United States, 328 U.S. 750, 776 (1946).

                                       20
the introduction of Dr. Griffith’s testimony because (1) Dr.

Griffith was thoroughly cross-examined at the sentencing phase of

the trial, and (2) the evidence demonstrated that Gardner’s crime

was such a heinous and brutal one that the jury undoubtedly would

have sentenced him to death, even if they had not been exposed to

the testimony of Dr. Griffith.   We disagree entirely.

     Dr. Griffith’s testimony was the centerpiece of the evidence

presented by the State during the punishment phase of Gardner’s

trial. After being introduced to the jury as a medical expert with

extensive experience in evaluating the future dangerousness of

criminal defendants, Dr. Griffith testified, with “one hundred

percent certainty,” that Gardner would “commit violent acts in the

future”; that he was “super dangerous, and [would] kill [again]

given any chance at all”; and that he would be a danger to others

even if incarcerated.   “Would”: not “might,” not likely “would,”

but absolutely “would.”     Dr. Griffith further testified that

Gardner exhibited no remorse for his crimes and that any behavior

to the contrary should not to be believed.
     Those words, spoken by a highly credentialed and experienced

expert bearing the imprimatur of the State, constitute as great if

not greater prejudice to Gardner than that suffered by the criminal

defendants in Satterwhite v. Texas40 and Vanderbilt v. Collins,41


     40
       486 U.S. 249 (1988). Dr. Grigson was the state’s
psychiatric expert in that case and his testimony, found by the
Supreme Court to have actually prejudiced the defendant, was
remarkably similar to that of Dr. Griffith in this case, both in
its content and in its prejudicial effect on the jury. He

                                 21
both cases in which Estelle v. Smith violations were found to have

actually prejudiced the habeas petitioner. In each of those cases,

the State bolstered the testimony of the psychiatric examiner by

presenting many witnesses who testified to the bad character of the

defendant.     Here, Dr. Griffith was the one and only character

witness presented by the State at the punishment phase.                   In

addition,    the   substance   of   Dr.   Griffith’s   testimony   and   the

vehemence with which he presented it were at least as damaging, if

not more so, than that of the psychiatric examiners in Satterwhite

and Vanderbilt.      In the words of our opinion in Vanderbilt, “it

would strain credulity to conclude that Dr. [Griffith]’s testimony,

which was quite lengthy and bore the imprimatur of an expert’s

opinion, did not have substantial, injurious effect on the outcome

of [Gardner’s] penalty phase.”42           We are satisfied that this

prejudice was in no way diminished, much less eliminated, by the

valiant efforts of Gardner’s trial counsel to mitigate through

cross-examination the devastating effects of the expert testimony

of the experienced and clearly biased psychiatrist for the State.


testified that “in his expert opinion, Satterwhite ‘will present
a continuing threat to society by continuing acts of violence.’
He [further] explained that Satterwhite has ‘a lack of a
conscience.’” In like manner, Dr. Griffith testified that Gardner
would “commit violent acts in the future;” that he was “super
dangerous, and [would] kill [again] given any chance at all”;
that he would be a danger to others even if incarcerated; that he
exhibited no remorse for his crimes; and that any behavior
indicating to the contrary should not to be believed.
     41
          994 F.2d 189 (5th Cir. 1993).
     42
          Id. at 199.

                                     22
     Likewise, the State’s stereotypical fall-back argument —— that

the heinous and egregious nature of the crime would have ensured

assessment       of    the   death    penalty     even   absent     the    psychiatric

testimony about future dangerousness —— cannot carry the day here.

First,    that    argument      cannot      prevail    without      eviscerating     the

Supreme Court-approved Texas “special issues” scheme.                      To permit a

jury to impose the death sentence solely because the facts are

heinous and egregious would be to return to the days of inflicting

capital    punishment        based    on    emotion    and    revenge,     supplanting

altogether the questions of deliberateness and future dangerousness

which make the Texas scheme constitutional.                         Second, in this

particular case, the details of the crime, as horrific as they are

on an absolute scale, are not significantly more egregious than

those in, for example, Vanderbilt.43                   Except for there being a

second teenage victim here (who survived), the crimes are amazingly

parallel;    yet       the   equally       heinous    facts    in   Vanderbilt     were

insufficient          to   negate    prejudice.       Finally,       our   decades    of

experience with scores of § 2254 habeas cases from the death row of
Texas teach an obvious lesson that is frequently overlooked:

Almost without exception, the cases we see in which conviction of

a capital crime has produced a death sentence arise from extremely

egregious, heinous, and shocking facts. But, if that were all that

is required to offset prejudicial legal error and convert it to

harmless error, habeas relief based on evidentiary error in the


     43
          Vanderbilt, 994 F.2d at 191.

                                             23
punishment phase would virtually never be available, so testing for

it would amount to a hollow judicial act.          We are satisfied that

here, Dr. Griffith’s testimony cannot conceivably be said to have

had no substantial, injurious effect on the outcome of the penalty

phase of this case:      There was Estelle v. Smith error and it was

legally prejudicial.

                            III. Conclusion

     As Estelle v. Smith teaches, the Fifth Amendment requires that

the defendant in a capital trial who is subjected to a court-

ordered psychiatric examination be informed that he is free to

refuse to participate in that examination because its results can

be used against him at the sentencing phase of the trial to secure

the death penalty.     Even though no magic words are required to be

incanted    talismanically,   we    nevertheless       conclude   that   the

“warnings” given here were so vague and ambiguous that it would not

merely be erroneous but indisputably would be unreasonable to

conclude that they could possibly have informed Gardner adequately,

for purposes of satisfying Estelle v. Smith, that the psychiatric
examination to be conducted by Dr. Griffith could and would be so

used.   We are thus satisfied that the CCA’s conclusion —— that the

warnings given by Drs. Griffith and Grigson were sufficient under

Estelle v. Smith —— constitutes an “unreasonable application of

federal law” to the facts that out of deference we are constrained

to accept. We therefore reverse the decision of the district court

and grant    Gardner’s   petition   for   the   writ    of   habeas   corpus.


                                    24
Inherent in    this   holding   is   our   conclusion   that   Gardner   was

actually prejudiced by this violation of his Fifth Amendment

rights.     The judgment of the district court is reversed and the

case remanded for that court to enter an appropriate judgment

directing the State of Texas either to (1) conduct a new sentencing

proceeding within a reasonable time specified by the district court

on remand, or (2) vacate Gardner’s death sentence and impose the

automatic life sentence specified by Texas law for a defendant who

is convicted of capital murder but not sentenced to death.

REVERSED; Petition GRANTED; Case REMANDED with instructions.




ENDRECORD




                                     25
E. GRADY JOLLY, Circuit Judge, Concurring:

     I    concur   in    the   conclusion      reached   by   the   majority.

Respectfully, however, I am unable to subscribe to its reasoning.

I believe that ultimately the correct result in this case can be

reached   swiftly,      without   a   prolix   effort    to   further   define

“unreasonable.”

     Succinctly stated, this is the way I see this case:                Estelle

v. Smith, 451 U.S. 454 (1981), requires that, before undergoing a

psychiatric    examination        concerning    future    dangerousness,     a

defendant must be “informed. . .that he has a right to remain

silent and that anything he says can be used against him at the

sentencing proceeding.” Powell v. Texas, 492 U.S. 680, 681 (1989).

The Texas Court of Criminal Appeals applied this legal principle in

Gardner’s case.      The record shows that Gardner was advised of his

right to remain silent and told that his statements during the

psychiatric exam could be used for or against him in the courtroom

to determine dangerousness.44          These statements constitute the

undisputed facts to which the court of criminal appeals applied the
Estelle legal principle.       The court of criminal appeals determined

that the warnings given Gardner were sufficient to comply with the

requirements of Estelle.

     Under Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 1523

(2000), we are to grant the habeas writ only if the court of

criminal appeals’ determination was “an unreasonable application”


     44
      This characterization of the warnings given Gardner is
extracted from a combination of the testimonies of both Dr.
Griffith and Dr. Grigson.
of the Estelle principle.   While Estelle requires that a defendant

be warned that his statements could be used against him in a

sentencing proceeding, Gardner was only told that his statements

could be used “in the courtroom” to determine his dangerousness.

As a matter of law, I believe the warnings given Gardner failed to

convey the express message specifically required by Estelle as

applied in death cases —— that any statement a defendant makes

could be used against him for the purposes of sentencing.       The

warning given Gardner only conveys that the statements could be

used during the course of the trial, at whatever point in the trial

dangerousness may become relevant.    This broad warning does not

convey the admonition that specifically addresses the sentencing

phase so as to inform a reasonably minded defendant that what he

says can be used against him to put him to death.   Such specificity

is required, as a matter of law, under Estelle.        The court of

criminal appeals, therefore, unreasonably applied the law when it

determined that Gardner’s warnings complied with Estelle.

     Thus, I fail to see the relevance of the majority’s repeated
reference to Gardner’s alleged status as an “uninitiated layman”

and “unsophisticated and undereducated member[] of society.”     Is

the majority saying that at some point a defendant’s education

renders a warning under Estelle unnecessary, or that the law

applies differently to defendants based on their socio-economic and

intellectual status?   Or is the majority’s emphasis on the fact

that Gardner was not “experienced defense counsel” or “well-versed


                                 27
in jailhouse legalese” suggesting that the failure to give proper

warnings under Estelle is subject to a harmless error exception if

the defendant is an experienced attorney?       In my view, the socio-

economic and intellectual status of the defendant is irrelevant in

a case like this, where the express statements fail, as a matter of

law, to convey the warnings required under Estelle.

      In sum, deciding the case in the way I suggest obviates the

need to try further to define “unreasonable application” —— a task

undertaken by the majority with little success when it suggests

that “we must reverse when we conclude that the state court

decision applies the correct legal rule to a given set of facts in

a manner that is so patently incorrect as to be ‘unreasonable.’”

The   majority’s   analysis   here   is   a   tautology   ——   it   simply

substitutes one protean phrase (patently incorrect application) for

another (unreasonable application).       In the end, the majority’s

lengthy journey to define “unreasonable” is a circular one, and we

are left at the point at which we started.       In my opinion, here we

are better off not wandering down this road, especially when the
excursion is unnecessary.      Although I cannot subscribe to the

majority’s “unreasonable application” analysis, I respectfully

concur in the conclusion reached by the majority.
