                             REVISED, July 12, 2000

                          UNITED STATES COURT OF APPEALS
                               For the Fifth Circuit

                           ___________________________

                                   No. 99-20868
                           ___________________________


                                JOHNNY PAUL PENRY

                                                           Petitioner-Appellant,

                                        VERSUS


GARY L. JOHNSON, Director, Texas Department of Criminal Justice,
                     Institutional Division,

                                                           Respondent-Appellee.

         ___________________________________________________

             Appeal from the United States District Court
        for the Southern District of Texas, Houston Division
          ___________________________________________________
                             June 20, 2000

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

W. EUGENE DAVIS, Circuit Judge:

       Penry filed a motion for a certificate of appealability (COA)

in    this   §     2254    capital   habeas      proceeding    alleging    various

constitutional violations.             For the reasons that follow, we deny

his motion.

                                          I

       Penry was convicted of capital murder and sentenced to death

in Texas state court for the rape and murder of Pamela Carpenter.

Penry raped Carpenter and stabbed her with a pair of scissors.                  He

had   met    her    several    weeks    earlier    while    helping   to   install
appliances in her home.          Penry matched the description Carpenter

gave of her attacker before she died.                    After being given his

Miranda warnings, Penry gave an oral confession and later a signed

confession to the rape and murder.                     At trial, Penry offered

mitigating evidence that he was mentally retarded and abused as a

child. He was convicted and sentenced to death.                 The United States

Supreme     Court   granted     federal    habeas      relief   and   vacated   his

sentence,      holding   that    Penry’s      rights    were    violated   by   jury

instructions the trial court gave at the punishment phase of his

trial.1     The court found that none of the three special statutory

questions provided to the jury, under Texas law, allowed the jury

to give effect to Penry’s mitigating evidence.                 “The jury was never

instructed that it could consider the evidence offered by Penry as

mitigating evidence and that it could give mitigating effect to

that evidence.”2

     In the second trial, the trial court followed the Texas

statutory scheme and gave the jury the same three special questions

it had given the jury in the first trial.               However, the judge also

provided supplemental instructions directing the jury to consider

any other relevant mitigating evidence and explained how to give

effect to that evidence.           Penry was again convicted of capital

murder and sentenced to death.            The sentence was again affirmed on

direct appeal3 and state habeas relief was denied.                    The district


     1
         Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934 (1989) (“Penry I”).
     2
         Penry I, 492 U.S. at 320; 109 S.Ct. at 2947.
     3
         Penry v. State, 903 S.W.2d 715 (Tex. Crim. App. 1995).

                                          2
court also denied Penry’s application for a COA.              Penry now seeks

a COA from this court.        We granted Penry’s motion for a stay of

execution in order to consider his motion for a COA.

                                       II

      A COA may only issue if the petitioner makes a “substantial

showing of the denial of a constitutional right.”4            This burden can

be met if the issues presented “are debatable among jurists of

reason; …a court could resolve the issues in a different manner; or

…the questions are adequate to deserve encouragement to proceed

further.”5

      A death sentence alone does not justify the automatic issuance

of a COA, although it is a proper consideration.6            Any doubts as to

whether the COA should issue are to be resolved in the petitioner’s

favor.7

      Penry’s    petition    was   filed    after   the   enactment     of   the

Antiterrorism and Effective Death Penalty Act (AEDPA).               Thus, for

questions of law or mixed questions of law and fact adjudicated on

the merits in state court, we may grant federal habeas relief under

28 U.S.C. § 2254(d)(1) only if the state court decision “was

contrary to, or involved an unreasonable application of, clearly



      4
        28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 120 S.Ct. 1595, 1603 (2000);
United States v. Kimler, 150 F.3d 429, 431 (5th Cir. 1998).
      5
        Miller v. Johnson,200 F.3d 274, 280 (5th Cir. 2000) (quoting Barefoot v.
Estelle, 463 U.S. 880, 893 n.4, 103 S.Ct. 3383, 3394 n.4 (1983)); Hicks v.
Johnson, 186 F.3d 634, 636 (5th Cir. 1999), cert denied 120 S.Ct. 976 (2000); see
also Slack, 120 S.Ct. at 1603-4 (quoting Barefoot v. Estelle, 463 U.S. 880, 893
and n. 4, 103 S.Ct. 3383).
      6
        Lamb v. Johnson, 179 F.3d 352, 356 (5th Cir. 1999), cert denied 120 S.Ct.
522 (1999).
      7
        Id.

                                       3
established [Supreme Court precedent].”8               A state court decision is

“contrary to” Supreme Court precedent if: (1) the state court’s

conclusion is “opposite to that reached by [the Supreme Court] on

a question of law” or (2) the “state court confronts facts that are

materially       indistinguishable       from      a   relevant    Supreme   Court

precedent” and arrives at an opposite result.9                     A state court

unreasonably       applies     Supreme       Court     precedent    if:   (1)   it

unreasonably applies the correct legal rule to the facts of a

particular case or (2) it “unreasonably extends a legal principle

from [Supreme Court] precedent to a new context where it should not

apply or unreasonably refuses to extend that principle to a new

context where it should apply.”10                  In deciding whether a state

court’s application was unreasonable, this court considers whether

the application was “objectively unreasonable.”11                  We now turn to

Penry’s specific arguments on appeal.

                                             III

     Penry first argues that the jury instructions given during the

punishment phase of his trial did not allow the jury to consider

and give effect to mitigating evidence regarding his alleged mental

retardation and severe child abuse; thus, the instructions violated

the Supreme Court’s directive in Penry v. Lynaugh12 (“Penry I”).

Penry explains that jurors could only give effect to his mitigating



     8
      See Miller, 200 F.3d at 280-81.
     9
      Williams v. Taylor,.
     10
         Id.
     11
         Id.
     12
          492 U.S. 302, 109 S.Ct. 2934 (1989).

                                         4
evidence, as the Supreme Court required in Penry I, and grant him

a life sentence if they found that the evidence fit under one of

the three special questions required by Texas law.13             In Penry I,

Penry’s federal habeas challenge to his first trial and conviction,

the Supreme Court found that, under the trial court’s instruction,

none of the three special statutory questions allowed the jury to

give effect to Penry’s mitigating evidence.            At Penry’s retrial,

however, the trial court supplemented the instruction it gave in

Penry I.   The court instructed the jury to consider any mitigating

circumstances supported by the evidence.           The instruction stated,

in part:

      [W]hen you deliberate on the questions posed in
      the special issues, you are to consider
      mitigating circumstances, if any, supported by the
      evidence…. A mitigating circumstance may include,
      but is not limited to, any aspect of the defendant’s
      character and record or circumstances of the crime
      which you believe could make a death sentence
      inappropriate in this case. If you find…any
      mitigating circumstances…you must decide how much
      weight they deserve, if any, and…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 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.



      13
         The three questions were: 1. Was the conduct of the defendant that
caused the death of the deceased committed deliberately and with the reasonable
expectation that the death of the deceased or another would result?      2. Is
there a probability that the defendant would commit criminal acts of violence
that would constitute a continuing threat to society? 3. Was the conduct of the
defendant in killing the deceased unreasonable in response to the provocation,
if any, by the deceased?    Since Penry, the statute has been revised to add a
fourth question concerning mitigation.

                                      5
       Penry correctly contends that the instruction still required

the jury to give a negative answer to one of the three special

issues in order for Penry to receive a life sentence.                    Penry argues

that    because       childhood        abuse    and   mental    retardation        do   not

necessarily fit within the scope of any of the special issues,

this instruction did not allow the jury to give effect to these

mitigating circumstances.                   However, on direct appeal, the Texas

Court of Criminal Appeals found that the instruction satisfied the

requirements of Penry I and allowed the jury to give effect to

those mitigating circumstances.14

       We agree with the district court that the Texas Court of

Criminal Appeals’s holding that the challenged instruction was

constitutional was not an unreasonable application of clearly

established law, namely Penry I. The instruction directed the jury

to   consider       and    give       effect   to   any   mitigating    circumstances

supported by the evidence by answering “no” to one of the special

issues       if   they    felt    a    life    sentence   was   appropriate.            This

instruction         satisfied         the    deficiency    in   the    trial   court’s

instruction        identified         in    Penry   I:     “[t]he     jury   was    never

instructed that it could consider the evidence offered by Penry as

mitigating evidence and that it could give mitigating effect to

that evidence in imposing sentence.”15

       We are not writing on a clean slate on this issue.                    This Court




       14
            Penry v. State, 903 S.W.2d 715, 765 (Tex. Crim. App. 1995).
       15
            Penry I,492 U.S. at 320, 109 S.Ct. at 2947.

                                                6
approved identical jury instructions on this point in Miller16 and

Emery v. Johnson.17      In Miller, we concluded that the defendant

failed to show that the same instructions given by the trial court

in this case violated Penry I.        We rejected the argument that the

jury was prevented from considering the mitigating evidence.18

              Miller’s jury, unlike Penry’s, was instructed
              that it should consider mitigating evidence
              when    deliberating     on    the     special
              issues....[It] was instructed that if it
              determined   when   giving   effect   to   the
              mitigating evidence, if any, that a life
              sentence rather than a death sentence was an
              appropriate response to Miller’s personal
              culpability, a negative finding should be
              given    to   the    special    issue    under
              consideration.19

     In the alternative, Penry argues that the jury charge was a

“nullification instruction” and was therefore unconstitutional

insofar as it instructed jurors to violate their oaths by rendering

an untruthful answer to one of the special issues if they wished to

give effect to the mitigating evidence presented in this case.            We

disagree.      The jury was not told to disregard the law; rather, it

was instructed on how to obey the law, as explained by the Supreme

Court in Penry I.

                                          IV

     Next, Penry argues that the admission of certain psychiatric

testimony and evidence offered by the state at trial violated his

Fifth and Sixth Amendment rights.


     16
        200 F.3d 274.
     17
        139 F.3d 191 (5th Cir. 1997), cert denied 119 S.Ct. 418 (1998).
     18
        200 F.3d at 290.
     19
        Miller, 200 F.3d at 290.

                                      7
                                           A.

      Penry’s Fifth Amendment challenge involves three categories of

psychiatric testimony and evidence presented by the state: 1.                the

testimony of Dr. Fason admitted during the guilt/innocence phase of

trial; 2.      the testimony of Dr. Quijano admitted during the

punishment phase of trial; and 3.               the report of Dr. Peebles

describing a court-ordered examination of Penry, which was admitted

at the punishment phase of trial.

                                           1.

      Penry’s primary challenge is to the testimony of Dr. Fason.

Penry contends that Fason’s testimony was based on his court-

ordered competency examination of Penry, and that the state’s use

of   the   testimony    to   argue    future    dangerousness      during    the

punishment phase violated Penry’s rights under Estelle v. Smith.20

More particularly, Penry argues that his Fifth Amendment privilege

against compelled self-incrimination was violated because he was

not advised before Dr. Fason’s examination of his right to remain

silent and that his statements could be used against him at the

sentencing proceeding.

      On direct appeal, the Texas Court of Criminal Appeals found

that Dr. Fason’s testimony fell within the Buchanan v. Kentucky21

exception to Estelle.         Under Buchanan, if a defendant presents



      20
         451 U.S. 454, 101 S.Ct. 1866 (1981). Estelle held that the defendant’s
Fifth Amendment right against compelled self-incrimination was violated because
he was not told that any statements made during his competency exam could be used
against him at the punishment phase on the issue of future dangerousness.
      21
         483 U.S. 402, 107 S.Ct. 2906 (1987).

                                       8
psychiatric evidence, then the prosecution may present rebuttal

psychiatric evidence without violating the Fifth Amendment.

     Penry contends that, as applied to this case, proper rebuttal

evidence under Buchanan is limited to evidence tending to prove

that Penry is not mentally retarded and that the state’s evidence

went beyond that scope.       After a careful review of the record, we

find that Fason’s testimony did fall within the Buchanan exception.

     At the guilt/innocence phase of trial, Penry offered various

psychological records, including reports of his performance on a

number of psychological and IQ tests.            The records also included

observations of his emotional status and social behavior.                  As

demonstrated by the closing argument of Penry’s attorney, one

reason these records were introduced was to lay a predicate for an

argument that Penry’s confessions were not truly voluntary because

Penry is mentally retarded and, thus, submissive to authority

figures. The evidence was also offered to support Penry’s argument

that his mental retardation made him less likely to act with the

intent required for capital murder.

     Dr. Fason’s testimony was introduced to rebut these arguments.

Fason testified that Penry had an antisocial personality disorder.

He explained how that condition could affect Penry’s IQ scores, and

that it was possible that Penry was not mentally retarded.              Also,

he testified that someone with an antisocial personality disorder

would   usually   not   be   easily   led   by   others   and   would   likely

disrespect and rebel against authority.          Fason did not discuss any

statements made by Penry during Fason’s examination, except whether

                                      9
Penry was able to identify his attorney at the interview.                    We

disagree with Penry’s characterization of Fason’s testimony as a

“sham rebuttal” by the state in order to introduce to the jury the

idea that Penry was a “psychopath.”               Penry’s defense centered

around his diminished capacity -- his alleged mental retardation at

the time of the offense -- and the idea that his mental status

rendered his confessions involuntary.           Therefore, we conclude that

the Court of Criminal Appeals’ determination that Fason’s testimony

was proper rebuttal under Buchanan is neither contrary to nor an

unreasonable application of clearly established federal law.22

                                           2.

      In addition to his challenge to Dr. Fason’s guilt phase

testimony, Penry also challenges the court’s admission, at the

punishment phase, of the testimony of Dr. Quijano and the report of

Dr. Peebles as violating Estelle.

      At the punishment phase, Penry called various relatives and

neighbors who testified that they believed Penry was mentally

retarded and abused as a child.        He also called Dr. Randall Price,

who had reviewed certain portions of Penry’s medical records and

administered various psychological tests to Penry.                  Dr. Price

concluded that Penry had a brain impairment and was mentally

retarded, and that the mental retardation could have influenced his

involvement in criminal activity.          Although he admitted that Penry


      22
         See Vardas v. Estelle, 715 F.2d 206, 209-10 (5th Cir. 1983) (finding no
violation of defendant’s Fifth Amendment privilege because state psychiatrists’
testimony was proper as rebuttal to defendant’s insanity defense; psychiatrists
testified that defendant was not insane, but instead was a sociopath.).

                                      10
had an antisocial history, he stated that Penry “looks more like

people with brain damage...than those with antisocial personality.”

      In rebuttal, the state called Doctors Quijano and Samenow and

introduced into evidence a number of Penry’s mental health records.

Dr. Quijano conducted a court-ordered competency examination of

Penry.     He testified that Penry had an antisocial personality

disorder which made him more likely to be violent in the future.

However, he testified that he based his opinion only on Penry’s

medical records including evaluations by others, and not on his own

examination of Penry.        Thus, the Texas Court of Criminal Appeals

found no Fifth Amendment violation.           This finding was not contrary

to, nor an unreasonable application of, clearly established federal

law.23

      The report of Dr. Peebles was admitted into evidence during

the   punishment    phase,    and   was     based   on   Dr.   Peebles’s   1977

examination of Penry prior to his trial on an unrelated rape

charge. The report determined that Penry would be dangerous in the

future if released.        At the time of Dr. Peebles’s examination,

Penry was not yet in custody on the instant capital charge and,

thus, could not have been warned about the potential use of his

      23
        See Williams v. Lynaugh, 809 F.2d 1063, 1068 (5th Cir. 1987) (finding no
factual basis for Fifth Amendment violation where state psychologist’s testimony
on future dangerousness was not based on his interview with the defendant.) See
also Hughes v. Johnson, 191 F.3d 607, 616-17 (5th Cir. 1999) (finding reasonable
a state court’s conclusion that psychiatrist’s testimony did not violate Estelle,
despite his having conducted a prior improper interview, because it did not
influence his testimony; also rejecting idea that “taint” of prior improper
interview created absolute bar to any expression of opinion by that
psychiatrist); cf. Flores v. Johnson, 2000 WL 426212, at *1, * 7 - *13 (5th Cir.
April 20, 2000) (Emilio M. Garza, J., specially concurring) (following but
questioning Supreme Court authority allowing psychiatric testimony on future
dangerousness deduced without examining the defendant).

                                       11
statements at the punishment phase of the capital trial.                The Texas

Court of Criminal Appeals found no Fifth Amendment violation

because Penry’s attorney had requested the examination;                 thus, Dr.

Peebles was acting as an agent of the defense, not of the state in

conducting his examination.24           We cannot say that the court’s

conclusion     was    unreasonable      or        contrary   to   Supreme   Court

precedent.25

                                             B.

      Penry also argues that his Sixth Amendment right to effective

assistance of counsel was violated by the use of testimony on

future dangerousness from Doctors Quijano and Fason because Penry

and his counsel were told that their examinations of him were

solely for the purpose of determining competency.                 Under Powell v.

Texas, “once a capital defendant is formally charged, the Sixth

Amendment right to counsel precludes such an examination without

first notifying counsel that ‘the psychiatric examination [will]

encompass the issue of their client’s future dangerousness.’”26 The

Texas Court of Criminal Appeals concluded that Penry’s attorney was


      24
         Penry, 903 S.W.2d. at 759-60; see Nelson v. State, 848 S.W.2d 126, 135
(Tex. Crim. App. 1992); Estelle, 451 U.S. at 467-68, 101 S.Ct. at 1875-76 (noting
that the defendant there did not initiate the examination and was not faced with
a person acting solely in his interest).
      25
         See Buchanan v. Kentucky, 483 U.S. 402, 422-23, 107 S.Ct. 2906, 2917-18
(1987) (finding that “if a defendant requests [the psychiatric] evaluation or
presents psychiatric evidence...the prosecution may rebut this presentation with
evidence from the reports of the examination that the defendant requested. The
defendant would have no Fifth Amendment privilege against the introduction of
this psychiatric testimony by the prosecution.”). (Emphasis added); see also
Schneider v. Lynaugh, 835 F.2d 570, 577 (5th Cir. 1988) (finding that, under
Buchanan, the fact that defendant requested the competency examination militated
against the defendant’s assertion of the Fifth Amendment privilege, particularly
when defendant had also introduced psychological evidence.).
      26
         492 U.S. 680, 681, 109 S.Ct. 3146, 3148 (1989) (quoting Estelle, 451 U.S.
at 471, 101 S.Ct. at 1877).

                                       12
“on notice that if he intended to put on a ‘mental status’ defense,

he would have to anticipate the use of psychological evidence by

the prosecution in rebuttal.”27             At a pretrial hearing, the trial

court expressly warned Penry’s counsel that the testimony of

Doctors Fason and Quijano might be admissible at trial if the

defense put on psychiatric evidence.28              At trial, Penry argued that

he was mentally retarded; thus, his confessions were involuntary.

He   also       argued    that    mental   retardation      could    have    been   a

contributing cause of Penry’s violent criminal acts and that his

mental retardation mitigated against the imposition of the death

penalty. The state was entitled to rebut this evidence by offering

psychiatric         evidence     that   some    condition    other    than    mental

retardation was a more sound explanation for Penry’s conduct.

Thus, the Court of Criminal Appeals’s findings are not contrary to,

nor an unreasonable application of, clearly established federal

law.

                                                V

       Penry next contends that his execution would violate the

Eighth Amendment, based on his alleged mental retardation and

severe child abuse.            First, Penry makes a general argument that

execution of the mentally retarded is a per se violation of the

Eighth Amendment. We agree with the district court that this claim

is procedurally          barred because Penry did not make the argument in

state court.          However, even if this claim was not procedurally


       27
            Penry, 903 S.W.2d at 758.
       28
            Id. at 759, n. 46.

                                           13
barred, it has been rejected by the Supreme Court.29

      Penry also argues that the death penalty would be cruel and

unusual as     applied    to   him    personally,    because    of   his   mental

retardation and severe childhood abuse.             This argument also fails.

On Penry’s direct appeal, the Texas Court of Criminal Appeals

(citing Penry I) concluded that constitutional requirements were

met because the jury was able to consider and give effect to

Penry’s mitigating evidence before determining that the death

sentence was appropriate.30          In Penry’s second trial, he presented

extensive mitigating evidence and the jury was instructed to

consider that evidence and told how to give it effect.                       More

significantly, although Penry was the individual before the Supreme

Court in Penry I, the Court did not suggest that his execution

would be unconstitutional based on his mental retardation or

childhood abuse.      The Texas Court of Criminal Appeals’s conclusion

that Penry’s execution would not violate the Eighth Amendment was

neither contrary to nor an unreasonable application of clearly

established Supreme Court precedent.

                                             VI

      Penry makes several other arguments in support of his motion.

He contends that: 1. the trial court violated his rights under

Simmons v. South Carolina31 by excluding his signed statement

waiving any right to parole, while allowing the state to argue


      29
         See Andrews v. Collins, 21 F.3d 612, 632 (5th Cir. 1994), cert. denied 513
U.S. 1114, 115 S.Ct. 908 (1995) (citing Penry I).
      30
         Penry, 903 S.W.2d at 766-67.
      31
         512 U.S. 154, 114 S.Ct. 2187 (1994).

                                        14
future dangerousness; 2.   his confessions were taken involuntarily

in violation of the Fifth Amendment; and 3.      the jury instructions

at his competency trial were unconstitutionally vague because they

did   not   define   the   terms    “reasonable,”     “rational,”      and

“understanding.”     We    find    all   of   these   arguments   to   be

unpersuasive, essentially for the reasons given by the district

court in its thorough opinion of March 29, 1999.

                                     VII

      For the reasons stated above, we deny Penry’s motion for a

certificate of appealability. We also vacate the stay of execution

previously entered by this court.




                                   15
