Anthony Pierce v. Rick Thaler, Director
Filing
501104749
08-70047
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REVISED MAY 7, 2010 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
United States Court of Appeals Fifth Circuit
FILED
N o . 08-70042 April 19, 2010 Lyle W. Cayce Clerk A N T H O N Y L PIERCE P e tit io n e r -A p p e lle e Cross-Appellant v. R I C K THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL J U S T I C E , CORRECTIONAL INSTITUTIONS DIVISION R e s p o n d e n t -A p p e lla n t Cross-Appellee
A p p e a l from the United States District Court fo r the Southern District of Texas
B e fo r e KING, DENNIS, and OWEN, Circuit Judges. K I N G , Circuit Judge: T h e petitionerappellee, Anthony L. Pierce, was sentenced to death in 1 9 8 6 in Texas state court for a murder committed during the course of a robbery in 1977. After exhausting his state-court avenues for postconviction relief in 2 0 0 7 , he sought habeas relief under 28 U.S.C. § 2254 in federal district court. T h e district court vacated Pierce's death sentence and ordered resentencing, fi n d in g that the statutory special issues presented to the jury at Pierce's s e n t e n c in g did not permit the jury to give meaningful consideration and effect t o all of Pierce's mitigating evidence, as Penry v. Lynaugh, 492 U.S. 302 (1989),
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No. 08-70042 r e q u ir e s . The district court denied Pierce's other asserted bases for habeas relief a n d denied a certificate of appealability (COA). The State appealed the
r e s e n t e n c in g . Pierce, in turn, sought a COA from this court on six of the issues r a is e d before the district court. We granted a COA as to two of those issues: W h e t h e r Pierce received ineffective assistance of counsel at sentencing, and w h e t h e r Pierce was mentally retarded and therefore ineligible for the death p e n a lt y under Atkins v. Virginia, 536 U.S. 304 (2002). W e now affirm the district court's grant of resentencing under Penry. B e c a u s e we affirm resentencing on that basis, we do not address whether P ie r c e 's ineffective assistance of counsel claim provides an alternate basis for r e s e n t e n cin g . We affirm the district court's denial of habeas relief and an e v id e n t ia r y hearing on Pierce's Atkins claim. The reasons for these rulings are e x p la in e d below. I. BACKGROUND T h e district court's exhaustive opinion more than adequately documents th e factual background and procedural development of this case. See Pierce v. Q u a r te r m a n , No. H-07-1561, 2008 WL 4445064 (S.D. Tex. Sept. 26, 2008). Here, w e recite only the facts and procedure necessary to our analysis of the Penry and A t k in s claims. A n t h o n y L. Pierce was convicted of capital murder for the shooting death o f Fred Eugene Johnson, the manager of a Church's Chicken in Houston, during a robbery of that restaurant on August 4, 1977. Pierce's first two convictions w e r e overturned by the Texas Court of Criminal Appeals (TCCA), in both cases b e c a u s e the trial court had improperly overruled defense counsel's challenges to c e r ta in venire members. See Pierce v. State, 604 S.W.2d 185 (Tex. Crim. App. 1 9 8 0 ); Pierce v. State, 696 S.W.2d 899 (Tex. Crim. App. 1985). Pierce was tried a n d convicted a third time and sentenced to death in 1986. The TCCA affirmed th e conviction and sentence, Pierce v. State, 777 S.W.2d 399 (Tex. Crim. App. 2
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No. 08-70042 1 9 8 9 ), cert. denied, 496 U.S. 912 (1990), and denied his application for p o s t c o n v ic tio n relief, Ex parte Pierce, No. 15,859-03 (Tex. Crim. App. Sept. 19, 2 0 0 1 ). On August 29, 2002, Pierce filed a successor state habeas application in w h ic h he contended that he was mentally retarded and therefore ineligible for t h e death penalty under Atkins. The TCCA denied the application on April 18, 2 0 0 7 . Ex parte Pierce, No. 15,859-04, 2007 WL 1139414 (Tex. Crim. App. Apr. 1 8 , 2007). Pierce filed a 28 U.S.C. § 2254 federal habeas petition on May 9, 2007, a n amended federal habeas petition on August 30, 2007, and a supplemental fe d e r a l habeas petition on July 1, 2008. O n cross-motions for summary judgment, the district court granted Pierce h a b e a s relief on one of his sentencing claims, concluding that the special issues p r e s e n t e d to the jury at the sentencing phase did not permit the jury to give m e a n in g fu l consideration and effect to all of Pierce's mitigating evidence, in v iola tion of Penry. The district court denied the remaining asserted bases for h a b e a s relief and sua sponte denied a COA on those issues. See Pierce v.
Q u a r t e r m a n , 2008 WL 4445064. We granted a COA as to Pierce's claims that h e received ineffective assistance of counsel at the sentencing phase and that b e ca u s e he is mentally retarded, his execution is precluded by Atkins. We o r d e r e d (and have received several rounds of) supplemental briefing as to these is s u e s and denied a COA as to all other issues. I I . STANDARD OF REVIEW T h is habeas proceeding is subject to the Antiterrorism and Effective Death P e n a lt y Act (AEDPA), 28 U.S.C. § 2254, because Pierce filed his federal petition o n May 9, 2007, well after AEDPA's effective date. See Lindh v. Murphy, 521 U .S . 320, 33637 (1997). Under AEDPA, a federal court may not grant a writ of h a b e a s corpus "with respect to any claim that was adjudicated on the merits in S ta te court proceedings" unless the state court's adjudication: "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, 3
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No. 08-70042 c le a rly established Federal law, as determined by the Supreme Court of the U n ite d States; or (2) resulted in a decision that was based on an unreasonable d e t e r m in a t io n of the facts in light of the evidence presented in the State court p r o c e e d in g ." 28 U.S.C. § 2254(d). A "rule[ ] of law may be sufficiently clear for h a b e a s purposes even when [it is] expressed in terms of a generalized standard r a t h e r than as a bright-line rule." Williams v. Taylor, 529 U.S. 362, 382 (2000). T h e relevant "clearly established federal law" is the law that existed at the time th e state court's denial of habeas relief became final. See AbdulKabir v.
Q u a r te r m a n , 550 U.S. 233, 238 (2007); Williams, 529 U.S. at 39094. A state c o u r t 's factual findings are "presumed to be correct," although a habeas p e tit io n e r may rebut this presumption by "clear and convincing evidence." 28 U .S .C . § 2254(e)(1). We review a district court's refusal to hold an evidentiary h e a rin g for abuse of discretion. Clark v. Johnson, 202 F.3d 760, 76566 (5th Cir. 2 0 0 0 ). I I I . THE PENRY ISSUE T h e district court vacated Pierce's death sentence and ordered r e s e n te n c in g after concluding that the statutory special issues presented to the ju r y at sentencing and the prosecutor's closing arguments regarding those s p e c ia l issues precluded the jury from giving meaningful consideration and effect t o all of Pierce's mitigating evidence, as Penry requires. 4 4 4 5 0 6 4 , at *5. Pierce, 2008 WL
The State appeals, arguing that the special issues in fact
p e r m it t e d the jury to give meaningful consideration and effect to the mitigating e v id e n c e . The special issues, as prescribed by a now-superseded version of the T e x a s Code of Criminal Procedure, were: 1) W h e t h e r Pierce's conduct that caused Johnson's death was d e l ib e r a t e and undertaken with the reasonable expectation t h a t the death of the victim or another would result; and
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No. 08-70042 2) W h e th e r there was a probability that Pierce would commit fu t u r e criminal acts of violence that would constitute a c o n t in u i n g threat to society.
S e e TEX. CODE CRIM. PROC. ANN., art. 37.071(b) (Vernon 1981);1 see also TEX. C ODE CRIM. PROC. ANN., art. 37.0711 § 1 (Vernon 2006) (noting that superseded sta tu te applies to offenses committed before September 1, 1991). A. T h e District Court's Opinion T h e district court summarized the mitigating evidence that Pierce p r e s e n te d at sentencing as including that: Pierce was young at the time of the c r im e (he had turned eighteen just 15 days before); his behavior in prison while in c a r c e r a te d at various points both before and after the crime was generally g o o d ; he was not a discipline problem as a child and was honest and respectful to w a r d his mother and admitted past wrongs to her; he had matured emotionally a n d spiritually while in prison; and he had developed intellectually and c r e a tiv e ly while in prison, improving his verbal abilities and making crafts, such a s picture frames and jewelry boxes. Pierce, 2008 WL 4445064, at *2. The d is tr i c t court rejected as unreasonable the TCCA's conclusion that the special is s u e s permitted the jury to give meaningful consideration and effect to this m it ig a t in g evidence. Noting that "Penry makes clear that jurors must have an o p p o r tu n it y to fully consider the mitigating evidence as it bears on the broader q u e s t i o n of the defendant's moral culpability," id. at *5 (alterations and internal q u o t a tio n marks omitted), the district court observed:
Pierce properly preserved his objection to the special issues, arguing at the sentencing phase that they did not permit the jury to give meaningful consideration and effect to the mitigating evidence. Pierce requested, but was denied, the following jury instruction: You are hereby instructed that you can consider all mitigating circumstances in regards to the punishment of the defendant herein. Mitigation will not be defined for you; but you may consider the age, race, background, sex, history, and all matters related to this defendant that have been put before you.
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No. 08-70042 O n the face of the special issues, the jury could consider some o f Pierce's evidence under the future dangerousness special issue. F o r example, Pierce's youth at the time of the offense and his b e h a v i o r in prison are relevant to that issue. Other evidence, h o w e v e r , is irrelevant, or is only partially relevant, to the future d a n g e r o u s n e s s issue, yet raises questions about Pierce's general m o r a l culpability and character. For example, his honesty and r e s p e c t toward his mother, his willingness to admit past wrongs, his e ffo r t s to improve himself through education, and his work making c r a ft items have little relevance to future dangerousness, but are r e le v a n t as to his character. I d . (citations omitted). T h e district court also held that the "Penry violation was exacerbated by p r o s e c u tio n comments during closing argument," which the district court found " s u g g e s t[e d ] to the jury that it could not consider Pierce's mitigating evidence at a ll . . . but could consider only whether the State presented sufficient evidence t o merit a `yes' answer to the special issues." Id. The district court concluded t h a t "the special issues in this case, especially when considered in light of the S t a t e 's closing argument, violated Pierce's rights under Penry." Id. at *6.
A c co r d in g ly , the district court vacated Pierce's death sentence with instructions t h a t the state court grant a new sentencing hearing or resentence Pierce to a s e n t e n c e less than death in accordance with Texas law in effect at the time of P ie r c e 's crime. B. P ie r c e 's Additional Mitigating Evidence P i e r c e contends that additional mitigating evidence that he presented at s e n t e n c in g and raised in his state habeas application and federal habeas p e t it io n , but that the district court did not discuss in its Penry analysis, provides fu r th e r support for the district court's conclusion.2 Pierce cites the testimony of
Pierce contends that there was substantial mitigating evidence that his trial counsel did not present at sentencing. This evidence included that Pierce: was borderline mentally retarded; was severely abused by his alcoholic father; grew up in extreme poverty in a violent neighborhood; and suffered from "horrific headaches" and other health problems as a child.
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No. 08-70042 h is mother, Erline Pierce, that he was a good child with few behavioral problems u n til he was 13 or 14 years old, when he fell in with a crowd of older boys who e x e r te d a bad influence. Erline Pierce further testified that, as a result of this c o r ru p t in g influence, Pierce was sent to the Texas Youth Council (TYC) 3 twice fo r extended juvenile detention stays as a young teenager. She commented that P i e r c e had been "locked up most of his young life," so he "couldn't have a c h a n c e ." Erline Pierce testified that her son had regularly attended church g ro w in g up and "still ha[d] those same beliefs" after his arrest. Finally, Erline P ie r c e testified that her son had emotionally matured and improved himself in p r is o n by furthering his education, developing his reading skills, and developing h is talent for art and woodworking by making jewelry boxes and picture frames fo r her. P ie r c e also cites the testimony of Sister Isabella Estrada, a principal for H o l y Cross School in Bay City, Texas. Sister Estrada testified that she got to k n o w Pierce during his years on death row, and she visited him regularly in the fo u r years leading up to Pierce's third trial. She testified that Pierce grew from b e in g depressed and angry about his situation to being more understanding. As h e developed his ability to speak and articulate his thoughts, Pierce became m o r e open and able to communicate his feelings. P ie r c e also cites comments by the prosecutor during voir dire that he a s s e r ts "conditioned" the prospective jurors to disregard his mitigating evidence. I n one such instance, the prosecutor stated:
Counsel's failure to present such evidence, however, does not provide a basis for a Penry claim, and Pierce does not urge this evidence in support of his Penry claim. "[W]e have held that a petitioner cannot base a Penry claim on evidence that could have been but was not proffered at trial." Miniel v. Cockrell, 339 F.3d 331, 338 (5th Cir. 2003) (internal quotation marks omitted). The Texas Legislature changed the name of the Texas Youth Council to the Texas Youth Commission in 1983. See Texas Youth Commission, TYC History, at http://www.tyc.state.tx.us/about/history.html (last visited February 23, 2010).
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No. 08-70042 Q. Would you also agree that under our law that the age of an in d i v id u a l, whether that be old or young age, in and of itself does n o t give anyone any special rights? Under our law when a person b e c o m e s the age of 17 they are an adult and are treated as such. W o u ld you agree? A. Yes, sir.
Q . Okay. So in that instance whether a person is 17 or they're 85, t h e law doesn't ask how old you are, what color you are, what your jo b is, what your sex is, what your education is, it asks that you fo llo w certain norms and those norms determine the interaction b e tw e e n human beings and violation of those be tried by a jury if it b e a criminal. Can you follow that concept in the purposes of our la w ? A. Yes, sir, I believe so.
T h e prosecutor also sought and obtained the juror's oral confirmation that if the ju r o r concluded that the answer to the two special issues was "yes," he would not " c h a n g e one of those answers to no just to prevent the defendant from receiving t h e death sentence." Similarly, to another prospective juror, the prosecutor asked: Q. Now, would you agree with me . . . that our law doesn't d i s tin g u is h as far as finding someone guilty in the law as it relates to an individual on the basis of their age or sex, their race or ethnic b a c k g r o u n d ? . . . I'm saying that our law, as far as making a person g u il ty or being charged with capital murder--like that doesn't d i s t in g u is h whether or not that person happens to be 17 or 18 or b la c k or white or a doctor or what I'm saying is race, sex, o c c u p a t io n , ethnic background, as far as whether or not they violate t h e law. A. I agree.
Q . And would you feel that if the State presented evidence to you o n Special Issue No. 2 that was beyond a reasonable doubt that the a n s w e r to Special Issue No. 2 should be "yes" and you found that p e r h a p s that individual was a particular age, a young person or so,
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No. 08-70042 w o u ld you necessarily answer that question "no" because of the age o r despite what the State showed you? A. No.
T h e State contends that the Texas special issues in fact permitted the jury t o give meaningful consideration and effect to all of the mitigating evidence p r e s e n t e d and rejects the proposition that any of the prosecutor's comments d u r in g voir dire or closing argument could have interfered with the jury's ability t o do so. C. T h e Legal Framework 1. A b d u l K a b i r and Brewer
T h e Supreme Court most recently addressed the Texas special issues in A b d u lK a b ir , 550 U.S. 233, and Brewer v. Quarterman, 550 U.S. 286 (2007).4
AbdulKabir and Brewer clarified a long and contentious line of cases in which the Court grappled with whether the Texas special issues provide a basis for the jury to give meaningful consideration and effect to mitigating evidence in considering a death sentence. See Jurek v. Texas, 428 U.S. 262 (1976) (upholding the facial constitutionality of the Texas special issues sentencing scheme but leaving room for as-applied challenges); Franklin v. Lynaugh, 487 U.S. 164 (1988) (rejecting as-applied challenge, reasoning that evidence of good prison behavior did not have mitigating significance independent of its relevance to the future dangerousness special issue); Penry, 492 U.S. 302 (concluding that habeas relief was appropriate because the special issues did not provide a basis for jury to give meaningful consideration and effect to evidence of low IQ, organic brain disorder, abusive upbringing, and antisocial personality disorder); Graham v. Collins, 506 U.S. 461 (1993) (declining to decide whether Texas special issues could give constitutionally adequate effect to mitigating evidence of good character and youth because law was not clearly established in 1984, when the conviction become final); Johnson v. Texas, 509 U.S. 350 (1993) (concluding, on direct review, that the petitioner's youth at the time of the crime could be given meaningful consideration and effect under the future dangerousness special issue); Penry v. Johnson, 532 U.S. 782, 799 (2001) (Penry II) (concluding that additional special instruction that allowed jury to nullify special issues if it concluded that other mitigating circumstances existed was constitutionally infirm because it "made the jury charge as a whole internally contradictory"); Tennard v. Dretke, 542 U.S. 274, 284 (2004) (rejecting a heightened-relevance standard applied by the Fifth Circuit that "has no foundation in the decisions of this Court"); Smith v. Texas, 543 U.S. 37 (2004) (per curiam) (holding that the special issues in combination with general nullification instruction did not allow the jury to give meaningful consideration and effect to mitigating evidence of learning disability, low IQ score, childhood abuse, and troubled upbringing).
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No. 08-70042 T h e s e cases describe the "clearly established law" as it existed in 1999 and 2001, r e s p e c t iv e ly , and AbdulKabir indicates that the same clearly established law e x is te d as early as 1990. AbdulKabir, 550 U.S. at 238; Brewer, 550 U.S. at 29495. AbdulKabir instructs that the relevant state-court judgment for
p u r p o s e s of review under AEDPA is the judgment adjudicating the merits of the p e t it io n e r 's state habeas application. 550 U.S. at 238. The TCCA rejected P ie r c e 's petition for habeas relief in 2001. Therefore, the "clearly established la w " described in AbdulKabir and Brewer controls this case. T h is circuit has construed AbdulKabir and Brewer as imposing a two-part t e s t to determine whether resentencing is required: First, the reviewing court m u s t determine whether the mitigating evidence presented by the petitioner s a tis fie s the "`low threshold for relevance' articulated by the Supreme Court." C o b le v. Quarterman, 496 F.3d 430, 444 (5th Cir. 2007).5 If the relevance
th r e s h o ld is met, the court must determine "whether there was a reasonable
The Court set out the threshold for relevance in Tennard v. Dretke, 542 U.S. 274 (2004), commenting: [T]he meaning of relevance is no different in the context of mitigating evidence introduced in a capital sentencing proceeding than in any other context, and thus the general evidentiary standard--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--applies. . . . Once this low threshold for relevance is met, the Eighth Amendment requires that the jury be able to consider and give effect to a capital defendant's mitigating evidence. Id. at 28485 (internal quotation marks omitted). The Brewer majority emphasized that the focus of the relevance inquiry is not on the "quantity, degree, or immutability" of the mitigating evidence offered, but rather on whether the evidence, whatever it is, "has mitigating relevance to the special issues" and "may diminish a defendant's moral culpability for the crime." Brewer, 550 U.S. at 294. A footnote of dicta in AbdulKabir, however, suggests an important limitation, stating that no special instruction is required when the "mitigating evidence has only a tenuous connection--some arguable relevance--to the defendant's moral culpability." AbdulKabir, 550 U.S. at 254 n.14 (internal quotation marks omitted). An additional special instruction is necessary only "when the defendant's evidence may have meaningful relevance to the defendant's moral culpability beyond the scope of the special issues." Id. (emphasis added; internal quotation marks omitted).
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No. 08-70042 lik e lih o o d that the jury applied the special issues in a manner that precluded it f r o m giving meaningful consideration and effect to all of [the petitioner's] m it ig a t in g evidence." Id. Both AbdulKabir and Brewer emphasize "the
im p o r t a n c e of allowing juries to give meaningful effect to any mitigating e v id e n c e providing a basis for a sentence of life rather than death." A b d u lK a b ir , 550 U.S. at 260 (emphasis added); accord Brewer, 550 U.S. at 296 (" [T ]h e jury must be allowed not only to consider such evidence, or to have such e v id e n c e before it, but to respond to it in a reasoned, moral manner and to weigh s u c h evidence in its calculus of deciding whether a defendant is truly deserving o f death."). 6 In particular, the Texas special issues will be constitutionally in s u ffic i e n t as applied when the mitigating evidence presented supports an " e n tir e ly different reason for not imposing a death sentence" than permitted by th e special issues. AbdulKabir, 550 U.S. at 259. AbdulKabir and Brewer also in d ic a te that courts should consider whether the prosecutor's comments to the ju r y may have "undermined" the jury's ability to give meaningful consideration a n d effect to all of the petitioner's mitigating evidence by suggesting that the ju r o r s may not consider mitigating evidence for relevance outside the special is s u e s . AbdulKabir, 550 U.S. at 261; Brewer, 550 U.S. at 291. 2. F r a n k l i n and Penry
Before AbdulKabir and Brewer, this circuit characterized the standard as requiring that the jury be able to "fully consider[ ] and giv[e] full effect to all of the defendant's mitigating evidence." Nelson v. Quarterman, 472 F.3d 287, 293 (5th Cir. 2006) (en banc) (citing Tennard, 542 U.S. at 28889). Since AbdulKabir and Brewer, this circuit has concluded that the "meaningful effect" and "full consideration and effect" standards are the same. See Coble, 496 F.3d at 447 n.15 (rejecting the State's assertion that the "meaningful effect" standard was less stringent; holding that "[r]egardless of the descriptor attached to it, the substance of the standard articulated . . . is the same"). This conclusion finds support in Brewer, where the Court criticized this circuit for applying a "sufficient effect" test rather than a "full effect" test in evaluating Brewer's habeas petition. 550 U.S. at 295. Both parties cite the "full consideration and effect" formulation from Nelson rather than the "meaningful effect" formulation from AbdulKabir and Brewer. Because this circuit has concluded that the standards are identical, see Coble, 496 F.3d at 447 n.15, we cite the Supreme Court's "meaningful effect" formulation.
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No. 08-70042 T h e standard embraced by the Court in AbdulKabir and Brewer was first a r t ic u la t e d by Justice O'Connor in her concurrence to Franklin, 487 U.S. 164. I n Franklin, the petitioner presented evidence at sentencing that he had b e h a v e d well in prison. Id. at 177. The plurality opinion concluded that the f u t u r e dangerousness special issue provided a sufficient vehicle for the jury to c o n s id e r the mitigating evidence. Id. at 17980. The plurality rejected the p e t it io n e r 's contention that an additional instruction was required because the m it ig a t in g evidence of good behavior in prison had relevance beyond the scope o f the special issues. Id. at 181. The plurality reasoned that "we have never c o n c lu d e d that States cannot channel jury discretion in capital sentencing" and r e je c te d the argument that the jury must be able to consider mitigating evidence fo r every issue to which it may be relevant. Id. J u s tic e O'Connor concurred with the plurality that the special issues were c o n s t it u t io n a lly sufficient as applied because the "petitioner did not suggest that h is lack of disciplinary violations [in prison] revealed anything more positive a b o u t his character" than lack of future dangerousness. Id. at 186 (O'Connor, J ., concurring). But Justice O'Connor disagreed that the special issues would be c o n s t it u t io n a lly sufficient if the mitigating evidence presented in fact had r e le v a n c e beyond their scope--for example, to "personal culpability" or " c h a r a c t e r ." Id. at 18486. She commented: If . . . petitioner had introduced mitigating evidence about his b a c k g r o u n d or character or the circumstances of the crime that was n o t relevant to the special verdict questions, or that had relevance t o the defendant's moral culpability beyond the scope of the special v e r d ic t questions, the jury instructions would have provided the jury w it h no vehicle for expressing its "reasoned moral response" to that e v id e n c e . . . . In my view, however, this is not such a case. The only m it ig a t in g evidence introduced by petitioner was the stipulation th a t he had no record of disciplinary violations while in prison. . . . W h ile it is true that the jury was prevented from giving mitigating e ffe c t to the stipulation to the extent that it demonstrated positive 12
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No. 08-70042 c h a ra c t e r traits other than the ability to exist in prison without e n d a n g e r in g jailers or fellow inmates, that limitation has no p r a ct ic a l or constitutional significance in my view because the s t ip u la t io n has no relevance to any other aspect of petitioner's c h a r a c te r . . . . The limited probative value of the stipulation regarding p e t it io n e r 's lack of prison disciplinary violations is best illustrated b y the contrasting examples of probative character evidence s u g g e s t e d by the dissent. . . . Evidence of voluntary service, k i n d n e s s to others, or of religious devotion might demonstrate p o s i t iv e character traits that might mitigate against the death p e n a lty . Although petitioner argued to the sentencing jury that his p r i s o n record demonstrated his lack of future dangerousness, p e t it io n e r did not suggest that his lack of disciplinary violations r e v e a le d anything more positive about his character than that. I d . at 18586. T h e Court adopted Justice O'Connor's Franklin concurrence in Penry, 492 U .S . 302, in an opinion which Justice O'Connor also wrote. There, the majority c o n c lu d e d that although the deliberateness and future dangerousness special is s u e s allowed the jury to give partial consideration to the petitioner's mitigating e v id e n c e of mental retardation and childhood abuse, the Eighth Amendment was n o t satisfied because the mitigating evidence had "relevance to his moral c u lp a b ility beyond the scope of the special issues, and . . . the jury was unable t o express its `reasoned moral response' to that evidence in determining whether d e a t h was the appropriate punishment." Id. at 322. D. A n a ly s is T h e parties do not dispute that the mitigating evidence that Pierce p r e s e n t e d at his sentencing satisfies the "low threshold for relevance articulated b y the Supreme Court." Coble, 496 F.3d at 444 (internal quotation marks o m it t e d ) . Instead, the parties dispute whether the Texas special issues provided t h e jury with a basis to give meaningful consideration and effect to the m itig atin g evidence that Pierce presented. The State contends that the Supreme 13
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No. 08-70042 C o u r t has already ruled, over a series of cases, that the special issues provide ju r o r s with a meaningful basis to consider all of the types of mitigating evidence t h a t Pierce presented at sentencing. The State urges that under the Penry line, t h e special issues are only inadequate "where the defendant offers evidence of m e n ta l retardation or mental defect or childhood abuse or, perhaps, [childhood] h a r d s h ip "-- ty p e s of evidence that the State contends Pierce did not present in t h is case. Pierce counters that the Supreme Court has never taken a categorical a p p r o a ch to determining whether the special issues provide a basis for giving m e a n in g fu l consideration and effect to various types of mitigating evidence, and h e argues that the special issues did not provide such a basis in this case. Pierce a ls o urges that the prosecutor's comments to the jury during voir dire and at c lo s in g -- w h ic h downplayed the mitigating effects of Pierce's youth and s u g g e s t e d that the jury lacked discretion to consider mitigating evidence outside t h e confines of the special issues--further deprived the jury of a basis for m e a n in g fu l consideration of Pierce's mitigating evidence. T h e first issue is whether the special issues provided a basis for the jury t o give meaningful consideration and effect to each type of mitigating evidence th a t Pierce introduced. The second issue is whether there is a reasonable
p r o b a b ilit y that the prosecution's voir dire questioning or closing arguments o p e r a t e d to undermine the jury's ability to give such consideration. Pierce's m it ig a t in g evidence falls into the following general categories: youth at the time t h e crime was committed, good behavior in prison, troubled childhood, and good c h a r a c te r . We address these categories of mitigating evidence, and the possible e ffe c t s of the prosecutor's comments to the jury, in turn. 1. Y o u t h and Good Behavior in Prison
A s the district court recognized, under clearly established federal law, the f u t u r e dangerousness special issue provided a meaningful basis for the jury to c o n s id e r and give effect to Pierce's youth--he had just turned 18 at the time of 14
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No. 08-70042 t h e killing--and his good behavior in prison. In Johnson v. Texas, 509 U.S. at 3 6 9 , the Court held that the future dangerousness special issue gave the jury "a m e a n in g f u l basis to consider the relevant mitigating qualities of petitioner's y o u t h ," reasoning that the signature qualities of youth are transient; as individuals m a tu r e , the impetuousness and recklessness that may dominate in y o u n g e r years can subside. . . . [T]here is ample room in the a s s e s s m e n t of future dangerousness for a juror to take account of t h e difficulties of youth as a mitigating force in the sentencing d e te r m in a tio n . I d . at 368. The AbdulKabir majority reiterated that youth "has special
r e le v a n c e to the question of future dangerousness" because it is "a universally a p p l ic a b le mitigating circumstance that every juror has experienced and which n e c e s s a r ily is transient." 550 U.S. at 261. The Franklin plurality and
c o n c u r r e n c e (a total of five Justices) agreed that the future dangerousness s p e c i a l issue also allows the jury to give meaningful consideration and effect to a petitioner's good behavior in prison. 487 U.S. at 17778, 18586. The Court h a s not overruled this precedent. See Garcia v. Quarterman, 257 F. App'x 717, 7 2 2 (5th Cir. 2007) (per curiam) (applying Franklin to reject the petitioner's P e n r y claim premised on mitigating evidence of good behavior in prison). The s p e c ia l issues provided a basis for the jury to give meaningful consideration and e ffe c t to the mitigating evidence of Pierce's youth and good behavior in prison. 2. T r o u b l e d Childhood
P ie r c e also urges as mitigating evidence his mother's testimony that he w a s a good boy until falling in with the wrong crowd when he was thirteen or fo u r t e e n years old, and that he spent much of his young life "locked up" during tw o extended stays in juvenile detention at the TYC. Pierce argues that this is e v id e n c e of a "troubled childhood"--evidence of a type that the Court held in A b d u l K a b i r and Brewer has mitigating relevance beyond the special issues
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No. 08-70042 b e c a u s e it bears on a defendant's moral culpability. See AbdulKabir, 550 U.S. a t 25657 (noting that evidence of a "rough childhood" has "mitigating force b e y o n d the scope of the special issues"); Brewer, 550 U.S. at 29394 (finding a P e n r y violation because focus on special issues would "necessarily disregard[ ] a n y independent concern that, given Brewer's troubled background, he may not b e deserving of a death sentence"). The State counters that Pierce's evidence is d i ffe r e n t in kind than the "troubled childhood" evidence at issue in those cases becau se those cases involved circumstances outside the petitioner's
con trol-- su ch as poverty and childhood abuse--while Pierce's evidence is limited to "his self-inflicted problems with the law." T h e case law does not support the distinction that the State urges. In B r e w e r , for example, the Court concluded that an additional instruction was n e c e s s a r y in order to allow the jury to consider and give effect to evidence that t h e petitioner's "co-defendant, a woman with whom he was apparently obsessed, d o m in a t e d and manipulated him," and that the petitioner had a history of s u b st a n ce abuse. 550 U.S. at 28990 (internal quotation marks omitted). The B r e w e r majority concluded that there was a reasonable likelihood that the s p e c ia l issues led the jury to "disregard[ ] any independent concern that, given B r e w e r 's troubled background, he may not be deserving of a death sentence," a n d therefore deprived the jury of the opportunity to respond to the petitioner's m it ig a t in g evidence in a "reasoned moral manner." Id. at 294, 296. Similarly, t h is circuit has held that evidence of a petitioner's substance abuse might have " m e a n in g fu l mitigating relevance beyond its tendency to disprove that [the p e t it io n e r ] acted deliberately" and therefore requires an additional instruction. G a rc ia , 257 F. App'x at 722 (internal quotation marks omitted). Both of these c a s e s involved mitigating evidence that was arguably "self-inflicted" (to use the S t a te 's term), but recognized that this evidence might nevertheless have m it ig a t in g relevance to the petitioner's moral culpability--and therefore 16
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No. 08-70042 r e le v a n c e outside the special issues. These holdings are consistent with the r e q u ir e m e n t that juries be allowed "to give meaningful effect to any mitigating e v id e n c e providing a basis for a sentence of life rather than death." A b d u lK a b ir , 550 U.S. at 260 (emphases added). Consistent with these
p r e c e d e n t s , Pierce's evidence of being led astray by older boys and being locked u p for a significant period of time at the TYC had mitigating relevance beyond t h e special issues and therefore required an additional instruction. 3. G o o d Character
P ie r c e introduced evidence of his good character before the crime, in c lu d in g that he was kind to his mother, was honest and admitted past wrongs t o her, and regularly attended church. Pierce also presented evidence of his good c h a r a c te r as it developed after he committed the crime. This evidence included th a t he had matured emotionally and spiritually while in prison, developing his a b ility to speak and articulate his thoughts and becoming more open and able to communicate his feelings. Pierce also matured in prison by furthering his e d u c a tio n , improving his reading skills, and developing his talent for art and w o o d w o r k in g . In Franklin, five Justices (two concurring, three dissenting) indicated, in d ic t a , that the special issues would not allow a jury to give meaningful c o n s id e r a t io n and effect to this type of "good character" evidence. Justice
O 'C o n n o r 's concurrence stated that although the petitioner's evidence of good b e h a v i o r in prison lacked relevance to any issue other than future d a n g e r o u s n e s s , had the petitioner presented "[e]vidence of voluntary service, k in d n e s s to others, or of religious devotion," an additional instruction would h a v e been required: [i]f [the] petitioner had introduced mitigating evidence about his b a c k g r o u n d or character or the circumstances of the crime that was n o t relevant to the special verdict questions, or that had relevance t o the defendant's moral culpability beyond the scope of the special 17
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No. 08-70042 v e r d ic t questions, the jury instructions would have provided the jury w it h no vehicle for expressing its "reasoned moral response" to that e v id e n c e . 4 8 7 U.S. at 18586 (O'Connor, J., concurring). Justice Stevens's dissent likewise e m p h a s iz e d that character evidence of this type "may suggest that the conduct o f which the defendant stands convicted was not in keeping with his or her usual q u a lit ie s or traits, a fact that has as much relevance to culpability as to future d a n g e r o u s n e s s ." Id. at 190 (Stevens, J., dissenting). S in c e Franklin, the Court's jurisprudence on California's death penalty s ta t u t e 7 has repeatedly held that character evidence has relevance to a p e tit io n e r 's moral culpability. See, e.g., Ayers v. Belmontes, 549 U.S. 7, 15 (2006) (n o tin g that good character evidence may "extenuate[ ] the gravity of the crime"); B r o w n v. Payton, 544 U.S. 133, 14243 (2005) (commenting on the relevance of g o o d character evidence as a means of "lessen[ing] or excus[ing] a defendant's c u lp a b ility "); Boyde v. California, 494 U.S. 370, 382 n.5 (1990) (commenting on r e le v a n c e of good character evidence as a means of showing "character strengths in the face of . . . difficulties" and showing that "criminal conduct was an a b e r r a t io n from otherwise good character").8 Evidence of "postcrime character t r a n s f o r m a t io n s " is also relevant: [ T ] o accept the view that such evidence could not [be relevant to m o r a l culpability] because it occurred after the crime, one would h a v e to reach the surprising conclusion that remorse could never s e r v e to lessen or excuse a crime. But remorse, which by definition c a n only be experienced after a crime's commission, is something c o m m o n ly thought to lessen or excuse a defendant's culpability.
California's death penalty statute sets out eleven factors "that the trier of fact shall take into account . . . if relevant." Relevant here is factor (k), which instructs the trier of fact to consider "[a]ny other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime." CAL. PENAL CODE ANN. § 190.3(k) (West 2008).
8
7
As a direct appeal, Boyde was not governed by AEDPA. 494 U.S. at 376.
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No. 08-70042 B ro w n , 544 U.S. at 14243; see also Ayers, 549 U.S. at 1516 (noting that it w o u ld be "counterintuitive if a defendant's capacity to redeem himself through g o o d works [after the crime] could not extenuate his offense and render him less d e s e r v in g of a death sentence"). Ayers and Brown set out the clearly established la w as it existed in 1994. 549 U.S. at 10; 544 U.S. at 139. Boyde was a direct a p p e a l decided in 1990, well before the denial of Pierce's state habeas application b e ca m e final in 2001. All of these authorities set out the clearly established law fo r purposes of this case. The Court has addressed good character evidence in the context of the T e x a s special issues only once since Franklin, in Graham v. Collins, 506 U.S. 4 6 1 . The State urges that Graham stands for the proposition that the special is s u e s allow juries to give meaningful consideration and effect to good character e v id e n c e . In Graham, the Court considered the petitioner's mitigating evidence th a t he had a transient upbringing, was a generous person, and "loved the Lord." I d . at 464 (alterations omitted). The Court stated, in dicta, that the special is s u e s allowed the jury to give at least some effect to this character evidence, and in d ic a t e d that some effect was all that was constitutionally required. Id. at 4 7 6 7 7 . Graham's actual holding, however, was that under the law as it existed in 1984 (the year the petitioner's conviction became final) the relief that the p e tition e r sought would have constituted a new rule, in violation of Teague v. L a n e , 489 U.S. 288 (1989). Id. at 477. The AbdulKabir majority took pains to d is t in g u is h Graham's "some effect" language as dicta, 550 U.S. at 25859, as did t h is court in Nelson, in which we rejected the State's contention that Graham a lte r e d the requirement that the jury be able to give "full consideration and full e ffe c t to the capital defendant's mitigating evidence," 472 F.3d at 298 ("Because
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No. 08-70042 t h e [Graham] Court disposed of the case on Teague grounds, it did not address t h e substantive merits of the petitioner's Penry claim.").9 B o th AbdulKabir and Brewer emphasize "the importance of allowing ju r ie s to give meaningful effect to any mitigating evidence providing a basis for a sentence of life rather than death." AbdulKabir, 550 U.S. at 260 (emphases a d d e d ). The California cases establish that good character evidence has
m e a n in g f u l relevance to moral culpability, which a majority of the Justices in F ra n k lin indicated is not encompassed by the special issues. These authorities e s t a b lis h that an additional instruction was required in order for the jury to c o n s id e r and give effect to this mitigating evidence. 4. E f f e c t of Certain Comments to the Jury
I n AbdulKabir and Brewer, the Court indicated that a prosecutor's c o m m e n t s to the jury at voir dire and at closing may further impede the ability o f the jury to give meaningful consideration and effect to mitigating evidence. P i e r c e complains that the prosecutor, at his sentencing, impressed upon the ju r o r s in closing argument that they could not consider evidence with relevance b e y o n d the special issues: Y o u each promised me individually that if the State brought you e v id e n c e that convinced you beyond a reasonable doubt that the a n s w e r s to these special issues would be yes and you knew that a " y e s " answer to each one of these issues would mean the death
The State cites several cases from this circuit that cite Graham for the proposition that "because `the principal mitigating thrust of good character evidence is to show that the defendant acted atypically in committing the capital crime, this evidence can find adequate expression under the second special issue.'" Bower v. Dretke, 145 F. App'x 879, 885 (5th Cir. 2005) (per curiam) (quoting Barnard v. Collins, 958 F.2d 634, 640 (5th Cir. 1992)); see also Coble v. Dretke, 417 F.3d 508, 525 (5th Cir. 2005) ("`Evidence of good character tends to show that the crime was an aberration, which may support a negative answer to the special issue regarding the future dangerousness of the defendant.'" (quoting Boyd v. Johnson, 167 F.3d 907, 912 (5th Cir. 1999))), withdrawn and superseded on rehearing, Coble v. Quarterman, 496 F.3d 430. But these cases predate AbdulKabir and fail to recognize that Graham's "some effect" language was dicta that the Supreme Court identified as such in AbdulKabir and this court has since similarly distinguished. See Nelson, 472 F.3d at 298, 303.
9
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No. 08-70042 p e n a lt y that you would answer those questions "yes" and that you w o u ld never change your answer despite the evidence in this case ju s t so that the death penalty would not be imposed. A s the district court observed, these comments are very similar (indeed, n e a rly identical) to those that the Court criticized in AbdulKabir, in which the p r o s e c u to r reminded jurors that they had "`promise[d' to] look only at the q u e s tio n s posed by the special issues, which, according to the prosecutor, r e q u ir e d the jurors to put the petitioner's mitigating evidence `out of [their] m in d [ s ]' and `just go by the facts.'" 550 U.S. at 261. The AbdulKabir Court c o n c lu d e d that these comments had the effect of impermissibly "convinc[ing] ju r o r s that the law compels them to disregard the force of the evidence offered in mitigation" that had relevance outside the special issues. Id. The prosecutor's closing comments in this case are also similar to those t h a t the Court criticized in Brewer, where the prosecutor urged the jury that " `y o u don't have the power to say whether [the petitioner] lives or dies. You a n s w e r the questions according to the evidence, much like you did at the guilt o r innocence [phase]. That's all.'" Brewer, 550 U.S. at 291 (alterations omitted). F i n d in g a Penry violation, the Brewer Court concluded that "[t]here [wa]s surely a reasonable likelihood that the jurors accepted the prosecutor's argument at the c l o s e of the sentencing hearing that all they needed to decide was whether B r e w e r had acted deliberately and would likely be dangerous in the future, n e c e s sa r ily disregarding any independent concern that, given Brewer's troubled b a c k g r o u n d , he may not be deserving of a death sentence." Id. at 29394
(fo o t n o t e omitted). To the extent that Pierce presented evidence that could not b e given meaningful consideration and effect under the special issues, the p rosecu t io n 's closing argument may have exacerbated the problem by instructing t h e jury to consider only the special issues.
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No. 08-70042 C e r ta in of the prosecutor's comments at voir dire were also problematic. T h e prosecutor elicited agreement from one venire member (who was later s e le c te d to serve on the jury) that "under our law . . . the age of an individual . . . in and of itself does not give anyone special rights," and that "whether a person is 17 or they're 85, the law doesn't ask how old you are . . . it asks that you follow c e r t a in norms and those norms determine the interaction between human beings a n d violation of those be tried by a jury . . . ." The prosecutor elicited agreement fr o m another venire member (also selected to the jury) that "our law, as far as m a k in g a person guilty or being charged with capital murder--like that doesn't d is tin g u i s h whether or not that person happens to be 17 or 18 . . . as far as w h e t h e r or not they violate the law" and the statement that she would not n e c e s sa r ily answer the second special issue "no" because of the defendant's age. T h e Abdul-Kabir majority observed that comments like these, which "tak[e] p a in s to convince jurors that the law compels them to disregard the force of e v id e n c e offered in mitigation," might "undermine[ ]" a jury's ability to give m e a n in g fu l consideration and effect even to evidence encompassed by the special is su e s . 550 U.S. at 261. By essentially instructing the venire members that " y o u t h isn't relevant," the comments may have undermined the jury's ability to g iv e mitigating effect to evidence of Pierce's youth through the special issues. E. C o n c lu s io n U n d e r the clearly established law, the special issues provided a basis for t h e jury to give meaningful consideration and effect to Pierce's mitigating e v id e n c e of youth and good behavior in prison but did not provide such a basis fo r the remainder of Pierce's mitigating evidence. The prosecutor's closing c o m m e n ts may have exacerbated this problem by impressing upon the jury that it s deliberations should be guided by the special issues alone. The prosecutor's c o m m e n t s at voir dire may have also undermined the jury's ability to give m e a n in g fu l consideration and effect under the special issues to the evidence of 22
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No. 08-70042 P i e r c e 's youth. Accordingly, we affirm the district court's order of resentencing. B e c a u s e we affirm on this basis, we do not consider whether Pierce's claim of in e ffe c tiv e assistance of counsel at sentencing provides an alternative basis for r e s e n te n c i n g . Accord Beckham v. Wainwright, 639 F.2d 262, 265 n.4 (5th Cir. U n it B Mar. 1981) (declining to consider whether the alleged denials of the right t o confrontation and right to jury trial provided bases for habeas relief and a new tria l because the petitioner's ineffective assistance claim provided such a basis). I V . THE ATKINS CLAIM W e granted a COA on the issue of whether Pierce is ineligible for the death p e n a lt y under Atkins v. Virginia, 536 U.S. 304, in which the Supreme Court held t h a t the Eighth Amendment forbids the execution of mentally retarded persons. T h e Atkins Court "le[ft] to the State[s] the task of developing appropriate ways t o enforce the constitutional restriction upon their execution of sentences." Id. a t 317 (alterations and internal quotation marks omitted). In Texas, a finding o f mental retardation requires: (1) significantly sub-average intellectual
fu n c tio n in g (generally, an IQ of 70 or below); (2) deficits in adaptive functioning; a n d (3) onset before age 18. See Ex parte Briseno, 135 S.W.3d 1, 7 (Tex. Crim. A p p . 2004). Pierce bore the burden of establishing by a preponderance of the e v id e n c e that he is mentally retarded. Id. at 78, 12; Woods v. Quarterman, 493 F .3 d 580, 585 & n.3 (5th Cir. 2007). Pierce contends that the district court erred in concluding that the state habeas court was not unreasonable in determining t h a t Pierce does not meet the Texas definition of a mentally retarded person. A. B a c k g ro u n d W e briefly summarize the evidence that the state habeas court considered a s to Pierce's Atkins claim in order to provide a background for our analysis of P ie r c e 's contentions. Dr. George Denkowski submitted an affidavit for the State. D r . Denkowski reviewed documents and examined Pierce in prison,
a d m in is t e r i n g , among other tests, the StanfordBinet Intelligence Scales--Fifth 23
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No. 08-70042 E d i t io n (SB-5) and the Adaptive Behavior Assessment System (ABAS). Pierce a t t a in e d a full-scale IQ score of 80 on Dr. Denkowski's administration of the SB5 . Dr. Denkowski opined that Pierce's IQ might actually be slightly higher than th is score suggested because Pierce suffered from moderate anxiety and mild dep ression , which may have suppressed the score. Pierce's ABAS results showed a significant adaptive deficit only in functional academics. T h r e e expert witnesses submitted affidavits on Pierce's behalf. The first e x p e r t , Dr. June Kaufman, examined and evaluated Pierce in connection with h is original state habeas application in 1990. Dr. Kaufman's affidavit did not in c lu d e an IQ score for Pierce, but did opine that he was "functionally mentally r e ta r d e d " and displayed adaptive deficits in the form of "understand[ing] s o c ie ty 's basic value systems and conventions," which resulted in "extremely p o o r social judgment in everyday life situations." The second expert, Dr. Richard G a r n e t t , did not examine Pierce but did review his records. Dr. Garnett noted t h a t Pierce had attained IQ scores ranging from 67 to 81 on various tests a d m in is te r e d during his childhood and young adulthood and observed that P ie r c e appeared to perform best in structured settings, a trait common among t h e mentally retarded. The third expert, Dr. Susana Rosin, administered the W e c h s le r Adult Intelligence Scale III, on which Pierce attained an IQ score of 70. D r . Denkowski's affidavit questioned that score, arguing that the result was u n r e l ia b le because Dr. Rosin had administered only a short form of that test. D r . Rosin also completed the Vineland Adaptive Behavior Scales using in f o r m a t io n from Pierce's records, reports from the Assistant Warden on death r o w , and information provided by Pierce. Dr. Rosin's Vineland results showed a significant adaptive deficit only in communication. T h e State habeas trial court considered these affidavits and adopted the p r o p o s e d findings of fact and conclusions of law submitted by the State. These in c lu d e d that the contents of Dr. Denkowski's affidavit--including his various 24
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No. 08-70042 c r it ic is m s of Pierce's experts' affidavit testimony--were credible. These also in c lu d e d that because Dr. Garnett was not certified by the Texas Department of M e n ta l Health and Mental Retardation to make a diagnosis of mental r e ta r d a t i o n but was instead a licensed marriage and family counselor, he was n o t qualified to make a diagnosis of mental retardation under Texas law. The T C C A rejected the state habeas trial court's finding as to Dr. Garnett's q u a lif ic a t io n to diagnose mental retardation, but otherwise adopted the state h a b e a s trial court's findings of fact and conclusions of law. I n support of his claim for federal habeas relief, Pierce sought an e v id e n tia r y hearing in the federal district court as to whether he is mentally r e t a r d e d . Pierce urged in the district court, and continues to urge in this court, t h a t a hearing is warranted because there is "new evidence" that Dr. Denkowski w a s discredited by the TCCA in another death penalty case after making several m e th o d o lo g ic a l errors. See Ex parte Plata, No. AP-75820, 2008 WL 151296 (Tex. C r im . App. Jan. 16, 2008) (per curiam). Pierce contends that Dr. Denkowski c o m m it t e d some of those same errors in the present case and also points to a d d i t io n a l purported shortcomings in Dr. Denkowski's analysis that did not o c c u r in Plata. Pierce also asserts, for the first time on appeal, that the state h a b e a s trial court erroneously found that Dr. Garnett was not qualified to d ia g n o s e mental retardation, and that although the TCCA declined to adopt this fin d in g , other of the findings that the TCCA did adopt were premised upon this fin d in g . The district court declined to hold an evidentiary hearing on the putative n e w evidence and concluded that all of the errors that Dr. Denkowski p u r p o r t e d ly committed in Plata either were not committed in Pierce's case or w o u ld not have affected the state habeas court's conclusions. Pierce, 2008 WL 4 4 4 5 0 6 4 , at **1315. Pierce asks this court to conclude that the district court a b u s e d its discretion in refusing to hold an evidentiary hearing. 25 In the
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No. 08-70042 a lt e r n a t iv e , Pierce asks, for the first time on appeal, that this court stay the case a n d hold it in abeyance while the state habeas court (to which he proposes to r e p a ir ) considers the "new evidence" as to Dr. Denkowski's performance in Plata. B . Atkins Issues Raised in the COA Application P ie r c e 's COA application raised the following five specific issues as bases fo r relief under Atkins: 1. A s in Plata, Dr. Denkowski improperly contended that depression and a n x ie t y had a suppressive effect on Pierce's IQ score; A s in Plata, Dr. Denkowski improperly evaluated Pierce's adaptive deficits a n d overstated the impact of sociocultural factors on these deficits; D r . Denkowski improperly criticized the results of IQ tests administered to Pierce by other experts as being less reliable because only certain s u b p a r ts were administered; D r . Denkowski failed to inform the court of the "Flynn Effect," which m ig h t have artificially inflated Pierce's IQ score on tests administered by o t h e r experts in 1975 and 1976. Dr. Denkowski also failed to inform the c o u r t that these same tests may be structured so as to overrepresent IQ; and T h e state habeas trial court made a clearly erroneous finding of fact that o n e of Pierce's experts, Dr. Garnett, was not qualified to diagnose mental r e t a rd a t io n . Although the TCCA declined to adopt this finding of fact, the s t a te habeas trial court's other findings of fact as to Dr. Garnett, which the T C C A did adopt, improperly relied on this erroneous finding. In granting a COA, we directed Pierce to "provide a record citation to w h e r e each such issue was raised before the state habeas court and federal d is t r ic t court--or, if the issue was not raised in these forums, to explain why the is s u e could not have been raised there." C. A n a ly s is F o r the first two issues on which we granted a COA, Pierce contends that, a s in Plata, Dr. Denkowski improperly testified that depression and anxiety had
2.
3.
4.
5.
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No. 08-70042 a depressive effect on Pierce's IQ score and improperly evaluated Pierce's ad ap tiv e deficits, overstating the impact of sociocultural factors on these deficits. B u t the district court addressed both of these arguments. As to Pierce's IQ s c o r e , the district court observed that in Pierce's case, unlike in Plata, "Dr. D e n k o w s k i did not have to rely on claims of clinical judgment to achieve an IQ s c o r e that is above the mentally retarded range." Pierce, 2008 WL 4445064, at * 1 3 . Pierce attained a full-scale IQ of 80 on Dr. Denkowski's administration of th e SB-5 before making any adjustments for depression or anxiety. Id. As to P ie rc e 's adaptive deficits, the district court held that even if Dr. Denkowski's e v id e n c e were not considered, "the evidence supports a finding that Pierce does n o t have significant deficits in adaptive behavior." Id. at *15. Pierce's COA a p p l ic a t io n and supplemental briefing do not actually challenge the district c o u r t 's conclusions as to these issues. These issues, therefore, do not provide a b a s is for Atkins relief.1 0 See Ortiz v. Quarterman, 504 F.3d 492, 501 n.6 (5th Cir. 2 0 0 7 ); Hughes v. Johnson, 191 F.3d 607, 613 (5th Cir. 1999). A s to the third and fourth issues on which we granted a COA--that Dr. D e n k o w s k i improperly criticized the reliability of Pierce's short-form IQ test s c o r e s and failed to explain how the "Flynn Effect" and structural test flaws w o u l d have inflated the results of tests that other specialists administered to P ie r c e -- P ie r c e concedes that he never raised these issues before the district c o u r t . Pierce contends that he did not do so because his strategy before the d i s t r i c t court was to argue "that Denkowski's credibility had been globally u n d e r m in e d by Plata and that an evidentiary hearing was required to determine
In any event, to the extent that Dr. Denkowski might have committed these errors in Pierce's case, the fact of these errors would not be "new evidence" in light of Plata because these errors were factual in nature and could have been identified by Pierce's experts before Plata was published. Pierce submitted the affidavit testimony of three expert witnesses on mental retardation in connection with his state habeas application and federal habeas petition. None of these affidavits cited any errors in Dr. Denkowski's affidavit.
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No. 08-70042 p r e c is e ly how Denkowski applied similarly flawed methodologies in this case." P i e r c e argues that the "gist" of his argument in the district court was that Dr. D e n k o w s k i's entire opinion was infected with errors, and that he raised these d i s c re t e issues on appeal simply to highlight examples: "These arguments were in t e n d e d to highlight significant flaws in Denkowski's methodologies . . . and to s h o w that it is simply not possible to carve out the flawed portions of D e n k o w s k i's report and then make a determination that what remains is s c i e n t if ic a lly sound and supports the state court's decision." Pierce's argument is not persuasive and does not provide a basis for g ra n tin g habeas relief or an evidentiary hearing. First, Pierce admits that he d id not raise these contentions in the district court. "`[W]e have repeatedly held t h a t a contention not raised by a habeas petitioner in the district court cannot b e considered for the first time on appeal from that court's denial of habeas r e l ie f .'" Goodrum v. Quarterman, 547 F.3d 249, 259 n.49 (5th Cir. 2008) (quoting J o h n so n v. Puckett, 930 F.2d 445, 448 (5th Cir. 1991)). Second, contrary to P ie r c e 's assertions about his "global" strategy in the district court, Pierce did in f a c t argue in the district court that Dr. Denkowski's affidavit contained a n u m b e r of specific errors--but those alleged errors were different than those t h a t he now urges on appeal. Third, none of Pierce's own experts raised the " F ly n n Effect" or structural test flaws as reasons for concluding that Pierce's IQ w a s lower than his scores on IQ tests not administered by Dr. Denkowski might in d ic a te . Finally, neither the accuracy of short-form test scores, nor the "Flynn E f fe c t ," nor alleged structural test flaws were at issue in Plata. In short, Pierce's a rg u m e n t that Dr. Denkowski's work in Plata provides "new evidence" that Dr. D e n k o w s k i performed deficiently has no merit and does not provide a basis for h a b e a s relief or an evidentiary hearing. 1 1 Because Pierce's contentions as to
Pierce seems to suggest that errors in an expert witness's work in another case, without a showing that those errors occurred in or may have affected the outcome of the
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No. 08-70042 "n e w evidence" lack merit, w
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