           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                            FILED
                                                                         October 15, 2007

                                       No. 03-11097                   Charles R. Fulbruge III
                                                                              Clerk

Fernando Garcia

                                                  Petitioner-Appellant
v.

Nathaniel Quarterman, Director, Texas Department of Criminal Justice,
Correctional Institutions Division

                                                  Respondent-Appellee



                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 3:01-CV-580


Before JONES, Chief Judge, and BENAVIDES and CLEMENT, Circuit Judges.
PER CURIAM:*
       Petitioner Fernando Garcia appealed the district court’s denial of his

habeas corpus petition, and this court previously denied relief. Because recent

decisions from the Fifth Circuit and the Supreme Court establish that Garcia’s

Eighth Amendment rights were violated by the trial court’s failure to present to

the sentencing jury an adequate vehicle to give meaningful mitigating effect to


       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                                     No. 03-11097


his history of substance abuse and an abused childhood, we grant Garcia’s

motion for rehearing, vacate the prior panel opinion, reverse the district court’s

decision, and remand with instructions to grant habeas relief.

      The following opinion is substituted for the panel’s prior opinion, reported

at 456 F.3d 463 (5th Cir. 2006).

                                 I. BACKGROUND

      With extraordinary cruelty, Garcia sexually abused and murdered a three-

year-old girl in 1987.1 Garcia was convicted of murder by a Texas jury and

sentenced to death on December 9, 1989. His conviction was affirmed in the

state courts and certiorari was denied by the U.S. Supreme Court. After

exhausting his state court habeas remedies, Garcia filed a federal habeas

petition in 2001. He argued, inter alia, that the trial court violated his Eighth

Amendment rights because the “special issue” jury instructions given at the

punishment phase of the trial prevented the jury from considering and giving

full effect to his mitigating evidence. The district court denied Garcia’s petition

for writ of habeas corpus but granted him a Certificate of Appealability. This

court denied relief in a divided ruling.



      1
        For the facts surrounding this heinous crime see Garcia v. State, 887 S.W.2d 846,
849-50 (Tex. Crim. App. 1994).

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      While Garcia’s petition for rehearing was pending, in a separate case our

court held en banc that the relevant inquiry in these cases is “whether there was

a reasonable likelihood that the jury would interpret the Texas special issues in

a manner that precluded it from fully considering and giving full effect to all of

the defendant’s mitigating evidence.” Nelson v. Quarterman, 472 F.3d 287, 293

(5th Cir. 2006). Shortly thereafter, the Supreme Court handed down two

decisions on this same question. Abdul-Kabir v. Quarterman, 127 S. Ct. 1654

(2007); Brewer v. Quarterman, 127 S. Ct. 1706 (2007).       In Abdul-Kabir, the

Supreme Court synthesized its various rulings on the Texas special issues to

explain that its precedent “firmly established that sentencing juries must be able

to give meaningful consideration and effect to all mitigating evidence that might

provide a basis for refusing to impose the death penalty on a particular

individual, notwithstanding the severity of his crime or his potential to commit

similar offenses in the future.” 127 S. Ct. at 1664. In light of these recent

authorities, we re-evaluate Garcia’s appeal.

      Garcia’s case in mitigation in the trial court rested on his background and

character. A psychiatrist who examined Garcia for the purposes of assessing his

future danger to the community testified that he did not have a stable, nurturing

family and was poorly educated. He also had a long history of drug abuse,

                                        3
                                     No. 03-11097


including using inhalants which can induce psychotic behavior and lead to

permanent neurological damage. Indeed, the jury heard testimony from Garcia’s

neighbor who stated that she saw him sniff paint and molest a small girl while

he was high.

      Finally, another doctor testified about Garcia’s background and pedophilia.

He described what information Garcia relayed to him about his disturbing

childhood: raised by his grandmother who exposed him to witchcraft and other

odd practices; drugged by his mother so he would have sex with her and her

boyfriend; forced to perform oral sex at the age of five on a friend of his brother’s

and at six on his brother; forced to perform oral sex at the age of eight on a

fourteen-year-old female cousin; and sexually abused by a nun. Although he

could not verify the veracity of these stories,2 the doctor described how this sort

of childhood could cause pedophilia in an adult. Garcia also admitted to the

doctor that he had sexually abused another young girl, who was five years old.

The doctor clinically diagnosed Garcia as a dangerous pedophile who would

probably molest children again if given the opportunity.




      2
        The trial court did not reach the question whether this testimony was inadmissible
hearsay, because the state did not object to it.

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                                  No. 03-11097


      The jury received written instructions from the trial court designed to

allow it to give effect to the mitigating evidence. The Charge of the Court in the

sentencing phase set forth the Texas special issues and instructed the jury to

answer “yes” or “no” to each one, applying the reasonable doubt standard.

Special Issue No. 1 reads: “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?” The

instructions defined “deliberately” for the jurors: “Deliberately is not

linguistically equivalent to intentionally and is more than intentionally and less

than premeditated; it is a conscious decision involving a thought process which

embraces more than mere will to engage in conduct.” Special Issue No. 2 reads:

“Is there a probability that the defendant would commit criminal acts of violence

that would constitute a continuing threat to society?”

      The court also informed the jury through a “nullification instruction” that

it could answer “no” to the special issues, even if the proper answer were “yes”:

      You are instructed that you shall consider any evidence which, in
      your opinion, mitigates against the imposition of the death penalty.
      In making this determination you shall consider any aspects of the
      defendant’s background, character or record and the facts and
      circumstances of the offense. If you believe from the evidence that
      the State has proven beyond a reasonable doubt that the answers to
      the Special Issues are “Yes,” but you are further persuaded by the

                                        5
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      mitigating evidence that the defendant should not be sentenced to
      death in this case, or you have a reasonable doubt as to whether the
      death penalty should be imposed against the defendant, then you
      shall answer one or both of the Special Issues “No” in order to give
      effect to your belief that the death penalty should not be imposed in
      this case. Mitigating circumstances are circumstances which do not
      constitute a justification or excuse for the offense in question, but
      which, in fairness and mercy, may be considered as extenuating or
      reducing the degree of moral culpability.

The jury answered “yes” to the special issues and the court sentenced Garcia to

death.

                           II. LEGAL STANDARDS

      “In reviewing a ruling on the merits of a habeas claim, the district court’s

findings of fact are reviewed for clear error; its conclusions of law, de novo.”

Schaetzle v. Cockrell, 343 F.3d 440, 443 (5th Cir. 2003). The Antiterrorism and

Effective Death Penalty Act of 1996 supplies the proper standards for reviewing

the state court ruling. See 28 U.S.C. § 2254. See also Jones v. Dretke, 375 F.3d

352, 353-54 (5th Cir. 2004). As to legal issues, the statute provides that the

habeas corpus petition should not be granted unless the state court’s

adjudication “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.” 28 U.S.C. § 2254(d)(1). “[A] state-

court decision is . . . contrary to [the Supreme] Court’s precedent if the state

                                        6
                                  No. 03-11097


court confronts facts that are materially indistinguishable from a relevant

Supreme Court precedent and arrives at a result opposite to [the Supreme

Court’s] . . . .” Williams v. Taylor, 529 U.S. 362, 405 (2000). “A state court

decision constitutes an unreasonable application of clearly established law if the

‘state court identifies the correct governing legal rule from [the Supreme Court’s]

cases but unreasonably applies it to the facts of the particular state prisoner’s

case.’” McCall v. Dretke, 390 F.3d 358, 363 (5th Cir. 2004) (quoting Taylor, 529

U.S. at 407-08). “[F]ederal habeas courts must deny relief that is contingent

upon a rule of law not clearly established at the time the state conviction

becomes final.” Peterson v. Cain, 302 F.3d 508, 511 (5th Cir. 2002).

                               III. DISCUSSION

      The Supreme Court has dictated “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 v. Lynaugh, 492 U.S. 302, 318 (1989)

(hereinafter Penry, or Penry I). Specifically, in Penry, the Supreme Court found

that the Texas special issues may not have permitted the jury to give adequate

effect to “the mitigating evidence of Penry’s mental retardation and history of

                                        7
                                        No. 03-11097


abuse.” 492 U.S. at 323. In Abdul-Kabir, the Court interpreted Penry to require

that juries be permitted to give “meaningful effect” to almost all types of

mitigating evidence. 127 S. Ct. at 1675.

                             A. The Nullification Instruction

       To correct the special issues’ inadequacies identified by the Supreme Court

in Penry I, Texas courts temporarily adopted a “nullification instruction,” like

the one presented to the jurors in the instant case. Such an instruction permits

the jurors to answer “no” to one of the special issues, even though the proper

answer is “yes,” if they nonetheless believe that the death penalty is not

warranted. In Penry II, the Supreme Court found this innovation insufficient.

See Penry v. Johnson, 532 U.S. 782, 798-804 (2001).

       The Court identified two flaws in the special issues nullification

instruction in Penry II. First, it reasoned that the instruction could be read as

a gloss on the special issues, rather than as a vehicle to override them. See id.

at 798. Thus, the jury might have believed that it was still required to give

“truthful answers to each special issue,” even in light of other mitigating

factors. Id.3 Second, even if the jury did properly understand the nullification

       3
          The instruction Justice O’Connor complained of as ambiguous in Penry II read, in part,
“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,

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                                     No. 03-11097


instruction as allowing it to override the special issues, it was in a position

where “it would have been both logically and ethically impossible for a juror to

follow both sets of instructions.” Id. at 799.

       The instruction in the instant case was different from the instruction the

Court held unconstitutional in Penry II. For instance, the instruction to Garcia’s

jury did not contain the language that Justice O’Connor worried could “be

understood as telling the jurors to take Penry’s mitigating evidence into account

in determining their truthful answers to each special issue.” Id. at 798. Rather,

the jury instructions here state clearly that, even “[i]f you believe . . . that the

answers to the Special Issues are ‘Yes,’” you “shall answer one or both of the

Special Issues ‘No’ in order to give effect to your belief that the death penalty

should not be imposed in this case” (emphasis added).

       However, the nullification instruction here still has the second flaw

identified in Penry II – it requires jurors to answer a special issue untruthfully

in order to give effect to the mitigating evidence. See id. at 802. Although “[a]

clearly drafted catchall instruction on mitigating evidence . . . might have

complied with Penry I,” in this case, “jurors . . . [still] had to answer the special


is an appropriate response to the personal culpability of the defendant, a negative finding
should be given to one of the special issues.” 532 U.S. at 798-99 (emphasis in original;
quotations omitted).

                                            9
                                       No. 03-11097


issues dishonestly in order to give effect to . . . mitigating evidence.” Id. at

802-03. Thus, the trial court’s additional “‘clarification’ provided no real help.”

Id. at 802.4

       Furthermore, the trial court’s clarification of the word “deliberately” did

not permit the jurors to give effect to any additional mitigating evidence.

Indeed, the court’s definition of “deliberately,” provided above, is less than artful.

And, in any event, the instruction simply did not “defin[e] the term . . . ‘in a way

that would clearly direct the jury to consider fully [petitioner’s] mitigating

evidence as it bears on his personal culpability.’” Id. at 803 (quoting Penry I, 492

U.S. at 323).

       Thus, in order for us to find that the jury had the opportunity to give

meaningful effect to Garcia’s mitigating evidence, we must determine that the

two special issues, standing alone, are constitutionally sufficient.




       4
         Both the Supreme Court and this Circuit have indicated in recent opinions that
requiring jurors to return false answers in order to give effect to mitigating evidence violates
the defendant’s constitutional rights. See Smith v. Texas, 543 U.S. 37, 48 (2004); Bigby v.
Dretke, 402 F.3d 551, 572 (5th Cir. 2005) (stating that “even if the jur[ors] understood the
instruction as directing them to ‘nullify’ their answers to the special issues, they still would
have faced the ethical dilemma of violating their oath to render a ‘true verdict’ by providing
false answers to the special issues in order to give effect to Bigby’s mitigating evidence and
comply with the supplemental instruction”).

                                              10
                                      No. 03-11097


                           B. Garcia’s Mitigating Evidence

       For the sake of clarity, we divide the mitigating evidence presented by

Garcia at the sentencing hearing into three categories: (1) evidence of Garcia’s

“good character”; (2) evidence of substance abuse; and (3) evidence of neglect and

abuse during childhood.5

       For evidence of good character, the jury could have considered Garcia’s

claim that he was a born-again Christian and the fact that during previous

incarcerations he had not been responsible for any serious disciplinary

violations. The law on this issue is clear. Abdul-Kabir did not alter the

Supreme Court’s ruling in Franklin v. Lynaugh that evidence of good character

can be given sufficient mitigating effect by the second special issue.                  See

Franklin v. Lynaugh, 487 U.S. 164, 177-78 (1988); accord Graham v. Collins, 506

U.S. 461, 466 (1993).

       The same cannot be said for Garcia’s evidence of substance abuse in light

of Abdul-Kabir and Brewer. It is possible Garcia’s substance abuse could have

been given some mitigating effect under the first special issue. Garcia claimed



       5
         Garcia also argues that his pedophilia may be considered mitigating of his moral
culpability. We reject this argument. In contrast to the abuse Garcia himself suffered as a
child, pedophilia is not a mitigating personal characteristic and does not meet even the low
threshold of relevance set by Tennard v. Dretke, 542 U.S. 274, 284-85 (2004).

                                            11
                                  No. 03-11097


that he had a long history of substance abuse and often committed his sex crimes

when he was high. It appears that Garcia was in a narcotic-induced, altered

state when he murdered his victim. The jury could have found that the drugs

prevented Garcia from having the deliberative state necessary for it to answer

“yes” to the first special issue. Nevertheless, Garcia’s substance abuse might

also have had “meaningful mitigating relevance beyond its tendency to disprove

that [Garcia] acted deliberately.” Coble v. Quarterman, 496 F.3d 430, 447 (5th

Cir. 2007).

      Likewise, the possibility that Garcia’s substance abuse might function as

a “two-edged sword” in the minds of the jury renders the special issues

insufficient. See Brewer, 127 S. Ct. at 1712 n.5, 1714. If the jury believed Garcia

could stem his substance abuse, it could have found him to be less of a future

danger under the second special issue. On the other hand, a jury convinced that

Garcia’s habitual substance abuse made him all the more dangerous would be

left without an alternate vehicle for considering whether it nonetheless made

him less culpable. See Coble, 496 F.3d at 447-48.

      The same is true of Garcia’s evidence of his abused childhood. The

Supreme Court has conclusively stated that childhood abuse cannot be given

meaningful mitigating effect under the special issues. The sort of childhood

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                                  No. 03-11097


abuse in Garcia, if believed, has meaningful similarities to that suffered by

Penry. In Penry I, the Court found that the Texas special issues did not permit

the jury to give proper mitigating effect to the defendant’s “abused background.”

492 U.S. at 315. The Court described the evidence of this abuse as follows:

“Penry’s sister testified that their mother had frequently beaten him over the

head with a belt when he was a child. Penry was also routinely locked in his

room without access to a toilet for long periods of time.” Id. at 309. The abuse

described in Penry I is sufficiently similar in mitigating effect to Garcia’s such

that the trial court, having the benefit of the Supreme Court’s recent Penry I

opinion, should have given it independent mitigating effect. See also Brewer,

127 S. Ct. at 1712 n.5, 1714 (noting that evidence of an abused childhood could

be “two-edged”).

      Further, the Penry I Court treated Penry’s history of abuse as something

with independent mitigating effect:

      Penry argues that his mitigating evidence of mental retardation and
      childhood abuse has relevance to his moral culpability beyond the
      scope of the special issues, and that the jury was unable to express
      its “reasoned moral response” to that evidence in determining
      whether death was the appropriate punishment. We agree. Thus,
      we reject the State’s contrary argument that the jury was able to
      consider and give effect to all of Penry’s mitigating evidence in
      answering the special issues without any jury instructions on
      mitigating evidence.

                                    13
                                      No. 03-11097


492 U.S. at 322 (emphasis added). At no point in the opinion does the Court

remark that it is only because Penry is mentally retarded that his past history

of abuse was not given sufficient mitigating effect under the special issues.

Abdul Kabir confirms this as the “clearly established” law enunciated by Penry I.

       In light of Penry I and II, Abdul-Kabir and Brewer, the state court’s ruling

that the special issues in this case were constitutionally sufficient was contrary

to the Supreme Court’s precedent or, alternatively, an unreasonable application

of clearly established law.

       The original majority opinion in this case determined that Garcia could not

avail himself of Penry-related arguments concerning his background because he

did not argue to the jury for mercy and, in fact, foreswore seeking “mercy.” In

light of the conclusiveness with which the Court has now rejected limitations on

the Penry doctrine and has declared as “clearly established law” only those

limitations embodied in the facts of specific cases,6 we must retract our earlier

view. A juror who credited Garcia’s evidence of an abused background and

believed that his childhood, or his substance abuse, made him less culpable could




       6
        See Abdul-Kabir, 127 S. Ct. at 1667-73 (recognizing limitations as stated in Franklin
v. Lynaugh, 487 U.S. 164 (1988); Graham v. Collins, 506 U.S. 461 (1993); Johnson v. Texas,
509 U.S. 350 (1993)).

                                             14
                                  No. 03-11097


not, under Abdul-Kabir, have given effective voice to this conclusion through the

special issues in this case.

      That this instructional error mandates reversal of the death sentence

follows from Abdul-Kabir and our en banc decision in Nelson v. Quarterman, 472

F.3d 287 (5th Cir. 2006). Neither of those decisions, however, alters the basic

rule that for “virtually all” other collateral challenges to state court convictions

the appropriate standard of review is the “substantial and injurious effect”

harmless error test found in Brecht v. Abrahamson. See Fry v. Pliler, 127 S. Ct.

2321, 2325 (2007) (citing Brecht, 507 U.S. 619, 631 (1993)). Moreover, the

question whether some types of Penry error might be subject to harmless error

review has not been squarely decided by and remains unresolved by the United

States Supreme Court. Smith v. Texas, 127 S. Ct. 1686, 1699 (2007) (Souter, J.,

concurring).

                               IV. CONCLUSION

      For these reasons, the district court’s judgment denying habeas relief is

REVERSED, and the case is REMANDED with instructions to grant the writ

and require a resentencing of Garcia within a reasonable time to be determined

by the district court.



                                        15
