                                                      United States Court of Appeals
                                                               Fifth Circuit
                                                            F I L E D
                     REVISED MARCH 29, 2006
                                                            March 17, 2006
              IN THE UNITED STATES COURT OF APPEALS
                      FOR THE FIFTH CIRCUIT             Charles R. Fulbruge III
                                                                Clerk


                          No. 01-10646



TED CALVIN COLE,
now known as Jalil Abdul-Kabir,

                                   Petitioner-Appellant,

versus

DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION,

                                   Respondent-Appellee.

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

                       --------------------
                ON PETITION FOR REHEARING EN BANC

          (Opinion 5/19/04, 5th Cir., 99 Fed. Appx. 523)
(Opinion on Remand from U.S. Supreme Court 7/22/05, 418 F.3d 494)

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:

     Treating the Petition for Rehearing En Banc as a Petition for

Panel Rehearing, the Petition for Panel Rehearing is DENIED.        The

court having been polled at the request of one of the members of

the court and a majority of the judges who are in regular active

service and who are not disqualified not having voted in favor
(FED. R. APP. P. and 5TH CIR. R. 35), the Petition for Rehearing En

Banc is DENIED.




                                2
DENNIS, Circuit Judge, dissenting from denial of the motion for

rehearing en banc.

       I respectfully dissent from the majority’s refusal to grant

rehearing en banc. The Supreme Court remanded this case to the

panel for reconsideration in the light of Tennard v. Dretke, 542

U.S.       274   (2004),   which     determined   that   the   Fifth   Circuit’s

“constitutional relevance rule,” which included the “nexus” and

“uniquely severe” tests, had no basis in the Supreme Court’s

decisions and suggested that those rules were, in fact, in conflict

with       federal   law   clearly    established   by   the   Supreme   Court’s

decisions in Penry v. Lynaugh, 492 U.S. 302 (1989)(Penry I), Boyde

v. California, 494 U.S. 370 (1990), and McKoy v. North Carolina,

494 U.S. 433 (1990).

           The panel, after reconsidering this case in light of Tennard

and Smith v. Texas,1 543 U.S. 37 (2004), applied the clearly

established federal relevance standard recognized in McKoy to

determine that Cole’s organic neurological defect, lack of impulse

control and destructive family background were relevant mitigating

evidence, but incorrectly interpreted and applied the Supreme

Court’s decisions in Johnson v. Texas, 509 U.S. 350 (1993) and

Graham v. Collins, 506 U.S. 461 (1993) as holding that the clearly

established federal capital sentencing principles (requiring a


       1
            Decided by the Supreme Court subsequent to its remand of
Cole.


                                          3
State to empower and allow its capital sentencer to fully consider

a   defendant’s   relevant    mitigating   evidence   in    individualized

assessment of his culpability and to give that evidence full effect

in selecting his sentence) articulated in Penry I apply only to

mitigation evidence, such as mental retardation, that has, for the

defendant’s   case,    a     “double-edged”   harmful      (i.e.,   only   an

aggravating, and no mitigating) effect upon the jury’s answer to

whether the defendant will be a danger to society in the future.

Then, without bothering to determine whether the pertinent state

court’s decision was contrary to or an unreasonable application of

clearly established federal law under AEDPA, the panel examined

Cole’s mitigation evidence in detail, determined that none of it

had a double-edged effect, and thus concluded that there had been

no constitutional violation under Penry I.

      In doing so, I believe that the panel used another Fifth

Circuit gloss upon a Supreme Court decision, i.e., the double edged

evidence limitation of Penry I, that has no basis in the Supreme

Court decisions, to avoid confronting the real issue, viz., whether

the Texas special issue instruction prevented the sentencing jury

from being able to fully consider and give full effect to Cole’s

relevant mitigating evidence.       When that issue is addressed by

applying the federal law clearly established by the Supreme Court’s

decisions, shorn of unauthorized Fifth Circuit gloss, as required

by AEDPA, I believe that we will be forced to conclude that the



                                    4
decision by the state court on November 24, 1999 to deny Cole

habeas relief was either contrary to or an unreasonable application

of clearly established federal law as determined by the Supreme

Court’s decisions. I cannot be absolutely certain of this result,

because neither the panel nor I have yet examined that state court

decision and its underpinnings.                On its face, however, the panel

decision appears to be incorrect and the situation we are in

clearly calls for an en banc reconsideration of this case.

     The majority’s decision to deny en banc reconsideration of the

panel decision is extremely unfortunate. The panel’s decision

erroneously denigrates the pertinent clearly established Supreme

Court jurisprudence of Penry I, McKoy and Boyde specifically

highlighted      in     Tennard      and       Smith    and        perpetuates    the

misinterpretation of Johnson v. Texas and Graham v. Collins as our

circuit precedent.        Our   other      panels,     as   well    as   the   federal

district and state courts, are certain to follow the Cole panel

once more into a breach that leads to almost certain Supreme Court

reversals and remands. The resulting waste of judicial resources

will be exacerbated this time, however, by our indifference in

allowing   the    Cole     panel’s      false     signals     to     misdirect    the

adjudication and review of many other state and federal Texas death

penalty cases.        The responsible, efficient and just course in the

present circumstances would have been, instead, for us to resolve

promptly en banc the important issues raised by the Cole panel



                                           5
decision and allow time for possible correction by the Supreme

Court before permitting our numerous other death penalty panels to

generate more decisions without either en banc or renewed Supreme

Court guidance.

     The reasons that an en banc rehearing is urgently needed in

this case are substantially similar to the reasons I assigned in

concurring in the judgment only in Nelson v. Dretke – F.3d —, No.

02-11096, 2006 WL 477143 at *5 (5th Cir. 2006).        In that opinion,

I concluded that the clearly established federal law under AEDPA on

October 10, 2001, the date of the Texas Court of Criminal Appeals’

denial of state habeas relief to Nelson on the merits, essentially

required a state to (1) empower its capital sentencer       to (a) give

full consideration and effect to all of the defendant’s relevant

mitigating evidence; (b) make an individualized assessment of the

level, degree, magnitude, and nature of the defendant’s moral

culpability and deathworthiness; and (c) select the appropriate

sentence of either life imprisonment or death for each convicted

defendant based on that assessment in light of all of the relevant

evidence in the case; and (2) refrain from interfering with the

capital sentencer’s performance of this constitutionally protected

function. In essence, I believe that these federal constitutional

requirements imposed on a State by the Eighth and Fourteenth

Amendments   were   clearly   established   by   the   Supreme   Court’s

decisions prior to Penry I; that any doubt as to these requirements



                                   6
was removed by the Court’s clear reaffirmation and reestablishment

of them in Penry I itself; that any new doubt or question as to

these requirements raised by any of the Court’s decisions after

Penry I, such as Johnson and Graham, were dispelled by the Court’s

decisions in McKoy, McCleskey v. Kemp, 481 U.S. 279 (1987), Boyde,

Buchanan v. Angelone, 522 U.S. 269 (1998), and Payne v. Tennessee,

501 U.S. 808 (1991), prior to the Texas Court of Criminal Appeals’

denial of state habeas relief on the merits to Cole on November 24,

1999.

     In Furman v. Georgia, 408 U.S. 238 (1972), Justice Stewart

expressed what has come to be the longstanding view of the Supreme

Court that:

      The penalty of death differs from    all other forms of
     criminal punishment, not in degree    but in kind. It is
     unique in its total irrevocability.   It is unique in its
     rejection of rehabilitation of the    convict as a basic
     purpose of criminal justice. And it   is unique, finally,
     in its absolute renunciation of all   that is embodied in
     our concept of humanity.

Id. at 305 (Stewart, J. concurring). Thus, he concluded, “that the

Eighth and Fourteenth Amendments cannot tolerate the infliction of

a sentence of death under legal systems that permit this unique

penalty to be so wantonly and so freakishly imposed.” Id.

     The natural outgrowth of that view led to the Court’s cases

condemning mandatory imposition of the death penalty, Roberts v.

Louisiana, 431 U.S. 633 (1977) (per curiam); Woodson v. North

Carolina, 428 U.S. 280 (1976) (plurality opinion); recognizing that



                                 7
arbitrary imposition of that penalty violates the Eighth Amendment,

e.g., Zant v. Stephens, 462 U.S. 862, 874 (1983); Gregg v. Georgia,

428 U.S. 153, 189 (1976); Furman, supra; mandating procedures that

guarantee full consideration of mitigating evidence, e.g., Eddings

v. Oklahoma, 455 U.S. 104 (1982); Lockett v. Ohio, 438 U.S. 586

(1978) (plurality opinion); and requiring that capital sentencers

be empowered and allowed to select for the death penalty only the

most blameworthy or deserving of offenders for that punishment

through    individualized        culpability       assessments     and    sentence

selections      based on the sentencer’s giving full consideration and

full effect to all of the defendant’s relevant mitigating evidence.

See California v. Brown, 479 U.S. 538, 545-546 (1987)(O’Connor, J.,

concurring)(“Lockett and Eddings reflect the belief that punishment

should be directly related to the personal culpability of the

criminal defendant. Thus, the sentence imposed at the penalty stage

should    reflect   a   reasoned    moral     response      to   the   defendant's

background, character, and crime rather than mere sympathy or

emotion....[T]he individualized assessment of the appropriateness

of the death penalty is a moral inquiry into the culpability of the

defendant[.]”) See also Hitchcock v. Dugger, 481 U.S. 393 (1987);

Sumner v. Shuman, 483 U.S. 66 (1987); Franklin v. Lynaugh, 487 U.S.

164,      184     (1988)(O’Connor,           J.,     with        Blackmun,     J.,

concurring)(stating       that     the   “principle      underlying       Lockett,

Eddings, and Hitchcock, is that punishment should be directly



                                         8
related to the personal culpability of the criminal defendant.”);

Id.     at    191-192    (Stevens,          J.,      with     two     other     Justices,

dissenting)(agreeing          with    O’Connor        that     “the    jury    must    “not

merely...be allowed to hear any such [mitigating] evidence the

defendant     desires    to    introduce...[but              also]    allowed    to    give

‘independent mitigating weight’ to the evidence.”).

      In     the   parallel,       sometimes         overlapping,      development       of

exemptions from eligibility for the death penalty, the Supreme

Court has held that the principles underlying capital punishment

sentencing require that whole categories of crimes and offenders be

removed from exposure to the death penalty because they presented

an insufficient level of moral culpability to warrant the most

extreme form of punishment. Prior to Penry I, the Court thus

exempted murderers whose crimes reflect only minimal or ordinary

moral      depravity,    Godfrey       v.         Georgia,    446     U.S.     420,    433,

(1980)(plurality        opinion);      rapists        of     adult    women,    Coker    v.

Georgia, 433 U.S. 584 (1977); murderer-accomplices who lack a

sufficiently culpable state of mind, Enmund v. Florida, 458 U.S.

782 (1982); and murderers who were under the age of 16 at the time

of the crime, Thompson v. Oklahoma, 487 U.S. 815, 838 (1988)

(plurality opinion). Subsequent to Penry I & II, the court applied

the   same    principles      to     exempt       mentally     retarded      persons    and

offenders who were under the age of 18 at the time of the crime.

Atkins v. Virginia, 536 U.S. 304 (2002); Roper v. Simmons, 543 U.S.



                                              9
551   (2005).     Even   dissenters    who    disagreed      with   categorical

exemptions      often    expressed    support       for    the   constitutional

requirement that the capital sentencer be empowered and allowed to

make particularized selection of only those for the death penalty

who   were   sufficiently      culpable      based    on    an   individualized

assessment of the mitigating evidence and the circumstances of each

case.2 This signifies a deep and abiding establishment of the

principle of individualized capital sentencing on the basis of each

offender's      degree   of   culpability     and    full    consideration   of

mitigation evidence.

      The Supreme Court in Penry I in 1989 reaffirmed the foregoing

clearly established principles that a capital sentencer must be

empowered to individually assess the culpability and just desert of

each defendant and individually determine the appropriate sentence



      2
       See Atkins, 536 U.S. at 318, 122 S.Ct. 2242; see also id. at
349-351, 122 S.Ct. 2242 (stating that "only the sentencer can
assess whether his retardation reduces his culpability enough to
exempt him from the death penalty")(Scalia, J., Rehnquist, J., and
Thomas, J., dissenting); Roper, 125 S.Ct. at 1224 (stating that
"[i]n capital cases, this Court requires the sentencer to make an
individualized determination, which includes weighing aggravating
factors and mitigating factors") (Scalia, J., dissenting);
Thompson, 487 U.S. at 870, 108 S.Ct. 2687 (recognizing a
constitutional    trend    towards    "individualized    sentencing
determinations rather than automatic death sentences for certain
crimes") (Scalia, J., Rehnquist, J., and White, J., dissenting);
and Eddings v. Oklahoma, 455 U.S. 104, 121 (1982) (interpreting
Lockett as requiring an individualized consideration of mitigating
circumstances) (Burger, J., White, J., Blackmun, J., and Rehnquist,
J., dissenting).



                                      10
for him based on all the relevant mitigating evidence. The Penry I

Court held that:



     (1) at the time Penry's conviction became final, it was clear

     from Lockett and Eddings that a State could not, consistent

     with   the    Eighth    and   Fourteenth      Amendments,       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 penalty. Penry I, 492 U.S. at 318;



     (2) [t]he rule Penry [sought]--that when such mitigating

     evidence [of his mental retardation and abused childhood] is

     presented, Texas juries must ... be given jury instructions

     that   make   it   possible    for    them    to   give    effect    to   that

     mitigating evidence in determining whether the death penalty

     should be imposed--is not a 'new rule' under Teague because it

     is dictated by Eddings and Lockett. Id. at 318-19;



     (3) "[u]nderlying Lockett and Eddings is the principle that

     punishment     should    be   directly       related      to   the   personal

     culpability of the criminal defendant," Id. at 319;




                                      11
     (4) "[I]t is not enough 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 imposing sentence." Id.;



     (5) "In order to ensure reliability in the determination that

     death is the appropriate punishment in a specific case, the

     jury   must   be     able   to   consider   and   give   effect   to   any

     mitigating evidence relevant to a defendant's background and

     character or the circumstances of the crime." Id. at 328; and



     (6) therefore, "in the absence of instructions informing the

     jury that it could consider and give effect to the mitigating

     evidence of Penry's mental retardation and abused [childhood]

     background by declining to impose the death penalty, ... the

     jury was not provided with a vehicle for expressing its

     reasoned moral response to that evidence in rendering its

     sentencing decision." Id. at 328 (internal quotations and

     citations omitted).



     Between the time of the Penry I decision in 1989 and the

pertinent state court habeas denial of habeas relief to Cole on

November    24,   1999,    the   Supreme    Court   reaffirmed   or    clearly

established the meaning of relevant mitigating evidence in capital



                                       12
punishment sentencing proceedings, the requirement that the capital

sentencer     be   empowered   and   allowed   to    make   individualized

culpability    assessments     and   selections     of   sentences   without

interference, the requirement that there be no limitation on the

sentencer’s consideration of any relevant mitigating circumstance,

the requirement that the sentencer not be constrained in the manner

in which it gives effect to relevant mitigating evidence, and

adopted and applied the Boyde reasonable likelihood rule for

determining when limitation on the sentencer’s ability and freedom

to fully consider and fully give effect to relevant mitigating

evidence violated the Eighth Amendment.

     In McKoy v. North Carolina, 494 U.S. 433 (1990) the Court

reaffirmed or clearly established that the principle of relevance

under Federal Rule of Evidence 401 applies in capital cases and

cannot be distorted by the state so as to interfere with the

sentencer's full consideration and use of relevant evidence in

culpability assessment and sentence selection. "It is universally

recognized that evidence, to be relevant to an inquiry, need not

conclusively prove the ultimate fact in issue, but only have 'any

tendency to make the existence of any fact that is of consequence

to the determination of the action more probable or less probable

than it would be without the evidence.' FED. R. EV. 401."            McKoy,

494 U.S. at 440 (quoting T.L.O., 469 U.S. at 345 (1985)).




                                     13
        In Payne v. Tennessee, 501 U.S. 808 (1991), Chief Justice

Rehnquist, writing for a six-Justice majority, reaffirmed that

"States cannot limit the sentencer's consideration of any relevant

circumstance that could cause it to decline to impose the penalty.

In    this   respect,    the   State    cannot    challenge    the   sentencer's

discretion, but must allow it to consider any relevant information

offered by the defendant." (quoting McCleskey v. Kemp, 481 U.S. 279

(1987).

       The Court in Buchanan v. Angelone, 522 U.S. 269, 276-77

(1998), reaffirmed that a state must empower and allow its capital

sentencer to select either the death penalty or life imprisonment

according to an individualized assessment of culpability level

based on all of the defendant's relevant mitigating evidence.

Buchanan declared that "[i]n the selection phase, [Supreme Court]

cases have established that the sentencer may not be precluded from

considering, and may not refuse to consider, any constitutionally

relevant mitigating evidence." Id. at 276. It also reaffirmed that

states do not have an unhindered ability to create sentencing

schemes as they see fit, and that to be constitutional they must

not    "preclude   the    jury   from    giving    effect     to   any   relevant

mitigating evidence." Id.         Finally, the Court distinguished Penry

I from the facts of Buchanan, making clear that Penry I involved a

Texas special issues scheme where the instructions "constrain[ed]




                                        14
the   manner   in      which    the     jury       was       able    to    give    effect      to

mitigation." 522 U.S. at 277.

      In Boyde v. California, 494 U.S. 370 (1990) the Court held

that (1) the Eighth Amendment requires that the jury be able to

consider and give effect to all relevant mitigating evidence

offered by petitioner (citing Lockett v. Ohio, 438 U.S. 586 (1978);

Eddings v. Oklahoma, 455 U.S. 104 (1982); and Penry, supra) and (2)

where the claim is that a challenged capital sentencing jury

instruction    is      ambiguous       and    therefore         subject       to       erroneous

interpretation, the proper inquiry is whether there is a reasonable

likelihood that the jury has applied the instruction in a way that

prevents   the      consideration        of        relevant         mitigating         evidence.

Although a defendant need not establish that the jury was more

likely than      not    to   have      been    impermissibly              inhibited      by    the

instruction, a capital sentencing proceeding does not violate the

Eighth   Amendment      if     there    is     only      a    possibility         of    such    an

inhibition. Id.

      A few years later, the Court in Johnson v. Texas, 509 U.S. 350

(1993), held that where the question is raised whether the Texas

special issues instruction allowed adequate consideration of the

mitigating evidence of petitioner's youth, "the standard against

which we assess whether jury instructions satisfy the rule of

Lockett and Eddings was set forth in Boyde v. California, 494 U.S.

370 (1990). The Court there held that a reviewing court must



                                              15
determine “whether there is a reasonable likelihood that the jury

has applied the challenged instruction in a way that prevents the

consideration of constitutionally relevant evidence.” Id. at 380.

Although the reasonable likelihood standard does not require that

the defendant prove that it was more likely than not that the jury

was prevented from giving effect to the evidence, the standard

requires more than a mere possibility of such a bar.

      Thus, the Court in Johnson acknowledged that the special

issues instruction had caused a possible constitutional violation

and adopted the Boyde reasonable likelihood test for the purpose of

determining whether a violation had indeed occurred. Further, the

Court in Johnson applied the Boyde test and concluded that there

was not a reasonable likelihood that the instruction had prevented

a   full   consideration   of   the   relevant   mitigating   evidence   of

Johnson's youth for the purpose of assessing his culpability. To

support its conclusion the Court's majority opinion undertook an

extensive analysis of the evidence in that particular case and

demonstrated to its own satisfaction that the jury's mental process

in considering the evidence for the purpose of answering the future

dangerousness special issue was substantially the same as that of

a jury which had considered the evidence for the purpose of




                                      16
assessing the defendant's culpability and selecting the appropriate

sentence.3

     In essence, the Court's majority indicated that the jury's

consideration of the mitigating evidence in answering the special

issue mimicked or served as a proxy for a consideration of the

evidence for the purposes of assessing the defendant's culpability

and selection of the appropriate sentence for him and his crime.

For some jurists, this is a troublesome analysis or rationale, as



     3
        Thus, the Court stated that answering the future
dangerousness special issue "is not independent of an assessment of
personal culpability", involving "the extent to which youth
influenced the defendant's conduct." Johnson, 509 U.S. at 369. "If
any jurors believed that the transient qualities of petitioner's
youth made him less culpable for the murder, there is no reasonable
likelihood that those jurors would have deemed themselves
foreclosed from considering that in evaluating petitioner's future
dangerousness." Id. at 370. Consideration of the relevant qualities
of petitioner's youth still "allow[s] the jury to give effect to
[this] mitigating evidence in making the sentencing decision." Id.
(internal citations omitted).

The jurors were required to "exercise a range of judgment and
discretion." Id.(citing Adams v. Texas, 448 U.S. 38, 46 (1980)).
"[A] Texas capital jury deliberating over the Special Issues is
aware of the consequences of its answers, and is likely to weigh
mitigating evidence as it formulates these answers in a manner
similar to that employed by capital juries in 'pure balancing'
States." Id. at 370- 71 (citing, Franklin v. Lynaugh, 487 U.S. 164,
182 n.12 (1988) (plurality opinion)). "[T]he questions compel the
jury to make a moral judgment about the severity of the crime and
the defendant's culpability. The Texas statute directs the
imposition of the death penalty only after the jury has decided
that the defendant's actions were sufficiently egregious to warrant
death." Id. at 371 (internal citations omitted). "[C]onsideration
of the second special issue is a comprehensive inquiry that is more
than a question of historical fact." Id.



                                17
evidenced          by       the   strong   dissent    by   four    of    the    Justices.4

Therefore, it is important to note that whether the special issue

adequately mimicked a comparative culpability analysis in Johnson

is     largely          a    factual   inquiry     based    on    the    character     and

propensities of the defendant and the circumstances of the crime in

that particular case. The holding or legal rule of decision in

Johnson, which is controlling and applicable to the present case

for purposes of AEDPA, was simply that when the special issues

instruction raises the question of whether the jury was precluded

from       fully    considering        and   giving    effect     to    the    defendant's

relevant mitigating evidence, the issue must be determined by

applying       the          Boyde   reasonable     likelihood     test.       The   Court's

subsequent straightforward application of the Boyde test in Penry

v. Johnson, 532 U.S.782 (2001) (Penry II), without reference to

Johnson or its extensive analysis of its facts corroborates this

conclusion.

       Under AEDPA, the Cole panel was required to determine whether

the state court’s denial of state habeas relief to Cole on the

merits on November 24, 1999 resulted in a decision that was

contrary to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court of the

United States. In sum, the Supreme Court has said that § 2254(d)(1)


       4
      See Johnson v. Texas, 509 U.S. 350, 375 (1993) (O'Connor, J.,
Blackmun, J., Stevens, J., and Souter, J., dissenting).


                                              18
places a new constraint on the power of a federal habeas court to

grant a state prisoner's application for a writ of habeas corpus

with respect to claims adjudicated on the merits in state court.

Under § 2254(d)(1), the writ may issue only if one of the following

two conditions is satisfied--the state-court adjudication resulted

in a decision that (1) "was contrary to ... clearly established

Federal law, as determined by the Supreme Court of the United

States," or (2) "involved an unreasonable application of ...

clearly established Federal law, as determined by the Supreme Court

of the United States." Under the "contrary to" clause, a federal

habeas court may grant the writ if the state court arrives at a

conclusion opposite to that reached by this Court on a question of

law or if the state court decides a case differently than this

Court has on a set of materially indistinguishable facts.            Under

the "unreasonable application" clause, a federal habeas court may

grant the writ if the state court identifies the correct governing

legal   principle   from   this   Court's   decisions   but   unreasonably

applies that principle to the facts of the prisoner's case.

     The panel opinion, however, does not describe, analyze or

review the pertinent state court’s opinion or reasons for its

decision in this case.      Consequently, it is difficult to see how

the panel was able to determine with any confidence that the

pertinent state court decision was or was not contrary to or an

unreasonable application of clearly established federal law as



                                    19
determined by the Supreme Court’s decisions.                 This in itself is

reason enough       for   an   en   banc    reconsideration     of    the    panel’s

decision.

     The more important reason that en banc reconsideration is

needed, however, is that the Cole panel opinion on its face appears

to result in a decision that is contrary to clearly established

federal law as determined by the Supreme Court’s decisions. For the

reasons explained above and in my separate opinion in Nelson v.

Dretke, the        Supreme Court decisions dating from Penry I to the

present     time    reaffirm     and     clearly    establish     the    generally

applicable Eighth and Fourteenth Amendment requirements that a

State must     empower     and   allow     its    capital   sentencer       to   fully

consider and fully give effect to a defendant’s relevant mitigating

evidence. Cole’s moral culpability was a factor of consequence to

the outcome of the sentencing proceeding. Cole’s evidence of his

organic     neurological       defect,     lack    of   impulse      control,     and

destructive family background was relevant mitigating evidence, as

the Cole panel concedes, because it made it more likely that the

jury would assess Cole with a lower level of culpability than it

would have without that evidence. The panel does not dispute, but

tacitly admits, that the State failed to comply with its duty and

responsibility to empower and allow the sentencing jury to fully

consider and fully give effect to Cole’s relevant mitigating

evidence by assessing his culpability and selecting his sentence on



                                           20
the basis of that evidence and assessment.                 Consequently, it is

plain that there is a significant possibility that the State

violated Cole’s Eighth Amendment rights by lack of compliance with

the capital sentencing requirements. Accordingly, either the panel

or this en banc court is required to apply the Boyde test to

determine whether a violation indeed exists, and, if so, apply the

Brecht harmless error test before granting habeas relief.

      The panel opinion erroneously concludes that Penry I and Penry

II have no application here because the Supreme Court limited the

scope of those decisions in Johnson, when it observed that there

was   expert   medial   testimony        that   the   defendant   was   mentally

retarded and that his condition prevented him from learning from

his mistakes, so that the only logical manner in which Penry’s jury

could have considered the evidence of his mental retardation the

future dangerousness special issue was as an               aggravating factor.

Further, the panel took the position that the Supreme Court also

limited Penry I when it indicated in Graham v. Collins, 506 U.S.

461 (1993) that “family background” evidence falls within the broad

scope of Texas’s special issues.

      Graham does not establish any precedent or holding that adds

to or detracts from the federal law clearly established by the

Supreme Court’s cases for purposes of AEDPA. Graham presented a

collateral     attack   on   a   death    sentence    by   a   petitioner   whose

conviction became final before Penry I was decided, and thus the



                                         21
threshold issue, the only one decided, was whether under Teague v.

Lane, 489 U.S. 288 (1989), granting Graham the relief he sought

would create a new rule of constitutional law.           Because the answer

was “yes,” instead of reaching the merits of Graham’s claims, the

Court    considered      only   the   preliminary   question    of     whether

reasonable jurists would have felt compelled by existing precedent

to rule in his favor.

     The panel also misinterprets Johnson v. Texas. As I explained

earlier, the holdings in Johnson were simply that (1) when a

defendant’s challenge to a Texas special issues instruction raises

the question of whether there was an Eighth Amendment violation

because the capital sentencer was precluded from fully               considering

and giving full effect to the defendant’s relevant mitigating

evidence, the reviewing court must apply the Boyde reasonable

likelihood test to determine whether such a violation occurred; and

(2) under the particular evidence and circumstances in Johnson,

according to the extensive factual analysis by the majority, there

was no reasonable likelihood that the special issues instruction

precluded the capital sentencer from fully considering and fully

giving   effect     to   the    mitigation   evidence,   because      in   that

particular case the mental and analytical processes of the capital

sentencer in answering the special issue of future dangerous

question were substantially similar to that of a reasonable capital

sentencer   using     the   evidence   for   purposes    of   assessing     the



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defendant’s culpability and selecting the appropriate sentence on

the basis of that assessment.           Johnson’s passages distinguishing

Penry’s mental retardation evidence from Johnson’s evidence of his

youth, and contrasting how they would affect the jurors’ answer to

the dangerousness special issue did not constitute a holding that

in any way limited the requirement that the capital sentencer be

enabled and allowed to give full consideration and full effect to

all of a defendant’s relevant mitigating evidence.              If it had been

the intention of the Court to create a double edged evidence rule

restricting the principles articulated by Penry to cases involving

purely aggravating evidence, there would have been no need in that

case   for   the   Court   to   adopt   and    apply   the   Boyde   reasonable

likelihood test; under a double edged evidence theory the Court

could have simply determined that evidence of youth is not purely

aggravating evidence and therefore, following that theory, Penry I

would not apply to require an additional instruction in order to

avoid a constitutional violation.            The Court’s decision in Johnson

does not anywhere say that it is adopting any rule except the rule

that when a Penry I violation challenge is brought, the reviewing

court must apply the Boyde test to ascertain if there has been a

violation.     Furthermore, the attempt to read an implied double

edged evidence limitation upon Penry I into the Johnson opinion

leads to many inexplicable inconsistencies.             Since the principles

articulated in Penry        have general application to all capital



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sentencers in all death penalty jurisdictions, one would expect

that, if there were such a limitation, it would be reflected or

discussed by the Supreme Court decisions subsequent to Johnson –

but to my knowledge there has been none. At least, one would expect

Justice   Kennedy,    Johnson’s   author,    to    refer    to   it   in   other

opinions,   but   instead    he   silently   and    fully    joined    in   all

subsequent opinions by Justice O’Connor in which she forcefully

reaffirmed the view of Lockett, Eddings and Penry I that the

principles set forth therein apply to any relevant evidence or

factor that might tend to have a mitigative effect upon the capital

sentencer’s decision of whether to decline to impose the death

penalty, e.g. Penry II and Tennard.

     Consequently, when correctly applied, the clearly established

principles of federal law as determined by the Supreme Court in

Lockett, Eddings, Penry I, McKoy, Boyde, Payne, McClesky, and

Buchanan,   require    the    conclusion     that    Cole’s      evidence    of

neurological defect, lack of impulse control, and destructive

family background is relevant mitigating evidence that Texas must

enable and allow its capital sentencer to give full consideration

and full effect in the assessment of his culpability and the

selection of his sentence; and because there is a question whether

the capital sentencer in Cole’s case was enabled and allowed to do

so, we must apply the Boyde test and conclude that there is more

than a reasonable likelihood that the capital sentencer in his case



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was not able to fully consider the evidence for the purpose of

assessing his culpability or to give full effect to the evidence by

choosing the appropriate sentence for Cole and his crime on the

basis of that assessment and all of the evidence and circumstances

of the case.

     For these reasons I respectfully dissent from the majority’s

decision to deny an en banc hearing in this case.




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