tennard dretke director texas department criminal justice correctional institutions division argued march decided june counsel record petitioner tennard mandy welch richard burr burr welch houston tx respondent dretke charles palmer assistant attorney general austin tx capital murder trial penalty phase petitioner tennard presented evidence iq jury instructed determine appropriate punishment considering two special issues inquired whether crime committed deliberately whether defendant posed risk future dangerousness materially identical two special issues found insufficient penry lynaugh jury give effect penry mitigating mental retardation childhood abuse evidence tennard jury answered special issues affirmatively tennard sentenced death federal district denied tennard federal habeas petition claimed death sentence violated eighth amendment interpreted penry denied certificate appealability coa fifth circuit agreed tennard entitled coa applied threshold test tennard mitigating evidence asking whether met fifth circuit standard constitutional relevance penry cases whether evidence uniquely severe permanent handicap bore nexus crime concluded low iq evidence alone constitute uniquely severe condition evidence tied tennard iq retardation even low iq amounted mental retardation evidence tennard show crime attributable vacated judgment remanded consideration light atkins virginia fifth circuit reinstated prior opinion held reasonable jurists find district assessment constitutional claims debatable wrong slack mcdaniel coa issued pp coa issue applicant made substantial showing denial constitutional right demonstrating reasonable jurists find district assessment constitutional claims debatable wrong relief may granted unless state adjudication contrary involved unreasonable application clearly established federal law determined pp fifth circuit assessed tennard penry claim improper standard threshold constitutional relevance screening test foundation decisions relevance issue penry spoke expansive terms addressing relevance standard directly mckoy north carolina finding applicable general evidentiary standard tendency make existence fact consequence determination action probable less probable without evidence low relevance threshold met eighth amendment requires jury must able consider give effect capital defendant mitigating evidence boyde california fifth circuit test inconsistent principles thus neither uniquely severe nexus element fifth circuit test proper reason reach substance tennard penry claims pp turning analysis fifth circuit conducted reasonable jurists conclude tennard low iq evidence relevant mitigating evidence texas criminal appeals application penry unreasonable since relationship special issues tennard low iq evidence essential features issues penry mental retardation evidence impaired intellectual functioning mitigating dimension beyond impact ability act deliberately reasonable jurist conclude jury might given low iq evidence aggravating effect considering tennard future dangerousness indeed prosecutor pressed exactly problematic interpretation special issues suggesting tennard low iq irrelevant mitigation relevant future dangerousness pp reversed remanded delivered opinion stevens kennedy souter ginsburg breyer joined rehnquist scalia thomas filed dissenting opinions robert james tennard petitioner doug dretke director texas department criminal justice correctional institutions division writ certiorari appeals fifth circuit june justice delivered opinion penry lynaugh penry held texas capital sentencing scheme provided constitutionally inadequate vehicle jurors consider give effect mitigating evidence mental retardation childhood abuse petitioner presented petitioner case argues scheme inadequate jurors give effect evidence low intelligence texas courts rejected claim federal district denied petition writ habeas corpus conclude reasonable jurists find district assessment constitutional claims debatable wrong slack mcdaniel therefore hold certificate appealability issued petitioner robert tennard convicted jury capital murder october evidence presented trial indicated tennard two accomplices killed two neighbors robbed house tennard stabbed one victims death one accomplices killed victim hatchet penalty phase trial defense counsel called one witness tennard parole officer testified tennard department corrections record prior incarceration indicated iq app testified iq test administered matter course ibid report indicated tennard years old time prepared admitted evidence parole officer testified know administered test government introduced evidence penalty phase regarding prior conviction rape committed tennard rape victim testified escaped window tennard permitted go bathroom take bath promising run away jury instructed consider appropriate punishment answering two special issues used time texas establish whether sentence life imprisonment death imposed conduct defendant robert james tennard caused death deceased committed deliberately reasonable expectation death deceased another result deliberateness special issue probability defendant robert james tennard commit criminal acts violence constitute continuing threat society future dangerousness special issue closing argument defense counsel relied iq score rape victim testimony suggest tennard limited mental faculties gullible nature mitigated culpability tennard got iq guy told poor unfortunate woman rape victim trying work day let leave believed guy iq goes sure enough escapes like uncontroverted testimony got man us got intelligence quotient low rebuttal prosecution suggested low iq evidence simply irrelevant question mitigation whether low iq really issue legislature asking address question future dangerousness special issue reasons became danger really relevant fact danger evidence shows danger criteria use answering question jury answered special issues affirmative tennard accordingly sentenced death unsuccessful direct appeal tennard sought state postconviction relief argued light instructions given jury death sentence obtained violation eighth amendment interpreted penry case held enough simply allow defendant present mitigating evidence sentencer sentencer must also able consider give effect evidence imposing sentence penry supra see also penry johnson penry ii describing effect language penry key decision concluded two special issues presented tennard jury plus third immaterial questions us insufficient jury penry case consider give effect penry evidence mental retardation childhood abuse therefore ran afoul eighth amendment penry mental retardation evidence held relevance moral culpability beyond scope deliberateness special verdict questio ersonal culpability solely function defendant capacity act brackets original moreover evidence concerning penry mental retardation indicated one effect retardation inability learn mistakes retardation relevant future dangerousness special issue aggravating factor evidence childhood abuse held two special issues simply failed provide vehicle jury give mitigating effect texas criminal appeals rejected tennard penry claim ex parte tennard en banc writing plurality four presiding judge mccormick observed definition mental retardation adopted texas involves three components subaverage general intellectual functioning concurrent deficits adaptive behavior onset early development period concluded tennard evidence low iq score standing alone meet definition qualitatively quantitatively tennard low iq evidence approach level johnny paul penry evidence mental retardation find evidence record applicant mentally retarded plurality went consider whether tennard entitled relief penry even low iq fell within penry definition mental retardation held explained unlike evidence presented penry case evidence tennard low iq rendered unable appreciate wrongfulness conduct committed offense low iq rendered unable learn mistakes control impulses found danger jury given evidence aggravating effect answering future dangerousness special issue low iq gullibility evidence beyond jury effective reach jury used evidence answer deliberateness special issue ibid two judges concurred separately wrote sustained penry claim evidence mental retardation even cases evidence mental retardation always something presented case opinion meyers citations omitted taking permissive view evidence impaired intellectual functioning plurality penry purposes courts distinguish mental retardation dementia even though onset latter may occur age eighteen concurring judges nevertheless concluded record contain sufficient evidence support tennard penry claim concurring judges also rejected tennard contention evidence iq alone requires published opinions texas courts uniformly required judge baird dissented maintaining criminal appeals consistent ly held wake penry evidence mental retardation adequately considered within statutory special issues strayed precedent judge baird wrote instead asking simply whether jury vehicle considering mitigating evidence weigh ed sufficiency tennard mitigating evidence judges overstreet womack dissented without opinion tennard sought federal habeas corpus relief district denied petition tennard johnson civ action july app began observing vidence single low score unidentified intelligence test evidence tennard mentally retarded considered whether iq score within effective reach jury ibid noting tennard low iq score concealed jury evidence sides argued significance punishment concluded jury adequate means two special issues give effect mitigating evidence subsequently denied tennard certificate appealability coa civ action tex see app appeals fifth circuit full briefing oral argument issued opinion holding tennard entitled coa penry claim debatable among jurists reason tennard cockrell began stating test applied fifth circuit penry claims involves threshold inquiry whether petitioner presented constitutionally relevant mitigating evidence evidence severe permanent handicap defendant burdened fault evidence criminal act attributable severe permanent condition held tennard entitled coa two reasons first held evidence low iq alone constitute uniquely severe condition rejected tennard claim evidence mental retardation low iq evidence introduced tying iq score retardation second held even tennard evidence mental retardation evidence claim must fail show crime committed attributable low iq judge dennis dissented concluding texas application penry unreasonable tennard entitled habeas relief tennard filed petition certiorari granted writ vacated judgment remanded consideration light atkins virginia tennard cockrell fifth circuit took remand consideration substantive atkins claim observed tennard never argued eighth amendment prohibits execution reinstated prior panel opinion granted certiorari ii coa issue applicant made substantial showing denial constitutional right interpreted require petitioner must demonstrate reasonable jurists find district assessment constitutional claims debatable wrong slack mcdaniel controlling standard petitioner must reasonable jurists debate whether matter agree petition resolved different manner issues presented adequate deserve encouragement proceed petitioner arguments ultimately must assessed deferential standard required relief may granted unless state adjudication resulted decision contrary involved unreasonable application clearly established federal law determined state never disputed tennard penry claim properly preserved federal habeas review state consider question merits note issue also raised defense counsel prior trial motion set aside indictment ground among others texas capital murder statutes explicitly allow consideration specific mitigating circumstances punishment phase prosecution consequently violative accused right free cruel unusual punishment also void vagueness defendant motion set aside indictment cause jud dist harris county may despite paying lipservice principles guiding issuance coa tennard cockrell supra fifth circuit analysis proceeded along distinctly different track rather examining district analysis texas decision invoked restrictive gloss penry reviewing penry claim must determine whether mitigating evidence introduced trial constitutionally relevant beyond effective reach jury constitutionally relevant evidence must show uniquely severe permanent handicap defendant burdened fault criminal act attributable severe permanent condition quoting davis scott test constitutional relevance characterized state oral argument threshold screening test tr oral appears applied uniformly fifth circuit penry claims see bigby cockrell robertson cockrell en banc smith cockrell blue cockrell davis scott finds certain mitigating evidence constitutionally relevant consider whether evidence within reach jur smith supra asks whether evidence constitutionally relevant consider whether within jury effective reach decision fifth circuit concluded tennard precluded establishing penry claim low iq evidence bore nexus crime move effective reach question fifth circuit test foundation decisions neither penry progeny screened mitigating evidence constitutional relevance considering whether jury instructions comported eighth amendment indeed mitigating evidence presented penry concededly relevant see tr oral pp even limiting principles regarding relevance suggested opinion think material holding addressed directly relevance standard applicable mitigating evidence capital cases mckoy north carolina spoke expansive terms established meaning relevance different context mitigating evidence introduced capital sentencing proceeding context thus general evidentiary standard tendency make existence fact consequence determination action probable less probable without evidence applies quoting new jersey quoted approvingly dissenting opinion state mitigating evidence evidence tends logically prove disprove fact circumstance reasonably deem mitigating value quoting state mckoy opinion exum thus state bar consideration evidence sentencer reasonably find warrants sentence less death low threshold relevance met eighth amendment requires jury able consider give effect capital defendant mitigating evidence boyde california citing lockett ohio eddings oklahoma penry see also payne tennessee held state preclude sentencer considering relevant mitigating evidence defendant proffers support sentence less death irtually limits placed relevant mitigating evidence capital defendant may introduce concerning circumstances quoting eddings supra fifth circuit test inconsistent principles obviously test screen positive aspect defendant character good character traits neither handicap typically traits criminal activity attributable skipper south carolina however made clear evidence evidence nder eddings may excluded sentencer consideration observed even though petitioner evidence good conduct jail relate specifically petitioner culpability crime committed question evidence sense might serve basis sentence less death lockett supra citation omitted evidence said defendant disposition make peaceful adjustment life prison nature relevant sentencing determination course texas courts might reasonably conclude evidence good conduct jail within jury effective reach via future dangerousness special issue see franklin lynaugh plurality opinion concurring judgment fifth circuit test evidence screened time came consider question tennard case fifth circuit invoked uniquely severe nexus elements test deny relief penry tennard cockrell contrasting tennard low iq evidence constitute uniquely severe condition mental retardation severe permanent condition concluding penry claims must fail tennard made showing trial criminal act attributable condition neither ground provided adequate reason fail reach heart tennard penry claims never denied gravity place relevance analysis insofar evidence trivial feature defendant character circumstances crime unlikely tendency mitigate defendant culpability see skipper supra hold facets defendant ability adjust prison life must treated relevant potentially mitigating example quarrel statement often defendant take shower irrelevant sentencing determination quoting state plath however say features circumstances panel federal appellate judges deems severe let alone uniquely severe tendency incorrect rather question simply whether evidence character might serve basis sentence less death skipper supra fifth circuit likewise wrong refused consider debatability penry question ground tennard adduced evidence crime attributable low iq atkins virginia explained impaired intellectual functioning inherently mitigating oday society views mentally retarded offenders categorically less culpable average criminal nothing opinion suggested mentally retarded individual must establish nexus mental capacity crime eighth amendment prohibition executing triggered equally countenance suggestion low iq evidence relevant mitigating evidence thus penry question need even asked unless defendant also establishes nexus crime state claims fifth circuit penry jurisprudence issue case brief respondent tr oral arg contrary jurisprudence directly issue fifth circuit denied tennard relief ground satisfy requirements imposed constitutional relevance test explained fifth circuit screening test basis precedents indeed inconsistent standard adopted relevance capital sentencing context therefore hold fifth circuit assessed tennard penry claim improper legal standard cf cockrell holding certiorari review denial coa fifth circuit applied incorrect standard improperly merging requirements two statutory sections turn analysis fifth circuit conducted tennard demonstrate reasonable jurists find district assessment constitutional claims debatable wrong slack mcdaniel conclude reasonable jurists conclude low iq evidence tennard presented relevant mitigating evidence evidence significantly impaired intellectual functioning obviously evidence might serve basis sentence less death skipper observing respect individual iq wiggins diminished mental capacitie augment mitigation case burger kemp noting petitioner iq functioned level child later light petitioner youth time offense testimony emotional development level several years chronological age excluded state quoting eddings reasonable jurists also conclude texas criminal appeals application penry facts tennard case unreasonable relationship special issues tennard low iq evidence essential features relationship special issues penry mental retardation evidence impaired intellectual functioning mitigating dimension beyond impact individual ability act deliberately see penry reasonable jurist conclude jury might well given tennard low iq evidence aggravating effect considering future dangerousness matter probable inference evidence also prosecutor told hether low iq really issue legislature asking address question reasons became danger really relevant fact danger evidence shows danger criteria use answering question app indeed prosecutor comments pressed exactly problematic interpretation special issues suggesting tennard low iq irrelevant mitigation relevant question whether posed future danger hold fifth circuit uniquely severe permanent handicap nexus tests incorrect reject hold reasonable jurists find debatable wrong district disposition tennard penry claim tennard therefore entitled certificate appealability judgment appeals fifth circuit reversed case remanded proceedings consistent opinion ordered robert james tennard petitioner doug dretke director texas department criminal justice correctional institutions division writ certiorari appeals fifth circuit june chief justice rehnquist dissenting certificate appealability may issue applicant made substantial showing denial constitutional right district rejected constitutional claims merits showing required satisfy straightforward petitioner must demonstrate reasonable jurists find district assessment constitutional claims debatable wrong slack mcdaniel believe reasonable jurists find district assessment constitutional claims debatable wrong dissent district conducted proper inquiry examining whether tennard evidence low intelligence effective jury app quoting johnson texas district came correct result special issues allowed jury give mitigating effect tennard evidence low intelligence graham collins jurek texas held texas special issues system general matter constitutional special issues system guides jury consideration mitigating evidence sentencing stated although lockett ohio eddings oklahoma prevent state placing relevant mitigating evidence effective reach sentencer graham supra cases others decisional line bar state guiding sentencer consideration mitigating evidence indeed held constitutional requirement unfettered sentencing discretion jury free structure shape consideration mitigating evidence effort achieve rational equitable administration death penalty boyde california quoting franklin lynaugh plurality opinion johnson supra penry lynaugh penry concluded texas special issues limited give effect penry mitigating evidence mental retardation severe childhood abuse noted penry effec sea change view constitutionality former texas death penalty statute graham supra tennard evidence low intelligence simply present difficulty penry evidence dispute tennard low intelligence relevant mitigating circumstance sentencing jury must allowed consider mitigating evidence see eddings oklahoma sentencer may precluded considering mitigating factor aspect defendant character record circumstances emphasis deleted quoting lockett ohio constitution require jury able give effect mitigating evidence every conceivable manner evidence may relevant johnson supra question case whether reasonable jurists find district assessment tennard evidence low intelligence within effective reach jury via texas special issues debatable wrong concludes relationship special issues tennard low iq evidence essential features relationship special issues penry mental retardation evidence ante disagree first special issue asked whether tennard caused death victim reasonable expectation death deceased another result ante criminal appeals texas noted district agreed mitigating evidence tennard low intelligence given effect jury deliberateness special issue follow conclusion penry mental retardation relevance penry moral culpability beyond scope deliberateness special issue evidence low intelligence relevance johnson graham clear question simply whether jury give effect mitigating evidence special issues johnson supra rejecting petitioner claim special instruction necessary evidence youth relevance outside special issue framework graham supra eading penry petitioner urges thereby holding defendant entitled special instructions whenever offer mitigating evidence arguable relevance beyond special issues require cases fourth issue put jury mitigating evidence whether relevant special issues lead believe death penalty imposed franklin lynaugh plurality rejected precisely contention finding irreconcilable holding jurek affirm conclusion today second special issue asked probability defendant commit criminal acts violence constitute continuing threat society ante case different penry expert medical testimony penry condition prevented learning experience evidence presented given evidence jury concluded low intelligence meant tennard slow learner proper instruction conform behavior social norms also concluded criminal appeals texas noted tennard rather app conform behavior proper environment either case contrary penry evidence given mitigating effect second special issue short low intelligence mental retardation necessarily create penry sword two summarily bracketed together think reasonable jurists disagree district conclusion jury case ability give mitigating effect tennard evidence low intelligence first second special issues dissent robert james tennard petitioner doug dretke director texas department criminal justice correctional institutions division writ certiorari appeals fifth circuit june justice scalia dissenting petitioner argues texas statutory special issues framework unconstitutionally constrained jury discretion give effect mitigating evidence low iq score violating requirement sentencer must allowed give full consideration full effect mitigating circumstances reply brief petitioner quoting penry johnson penry ii turn quoting johnson texas dissenting claim relies penry lynaugh penry case applied principles earlier limned eddings oklahoma lockett ohio previously expressed view right unchanneled sentencer discretion basis constitution see penry supra opinion concurring part dissenting part also said decisions establishing right deserve stare decisis effect requiring unchanneled discretion say death rationally reconciled prior decisions requiring canalized discretion say yes practice furman georgia per curiam described discretion sentence death pronounced constitutionally prohibited woodson north carolina plurality opinion lockett renamed discretion sentence death pronounced constitutionally required walton arizona scalia concurring part concurring judgment returned greater rationality penry jurisprudence cutting back graham collins johnson texas supra joined pruning effort noting essence today holding effect discretion may constitutionally channeled set forth dissent penry concurring opinion chief justice notes lower courts disposition petitioner penry claim present case entirely appropriate cases ante dissenting opinion yet opinion even acknowledge existence finds failings fifth circuit framework analyzing penry claims jurisprudence root problem simultaneous pursuit contradictory objectives necessarily produces confusion walton supra although present case involves coa ruling rather ruling directly merits petitioner claim require issuance coa insubstantial right issue derives case law long left constitution behind embraced contradiction respectfully dissent robert james tennard petitioner doug dretke director texas department criminal justice correctional institutions division writ certiorari appeals fifth circuit june justice thomas dissenting petitioner must rely penry lynaugh argue texas special issues framework unconstitutionally limited discretion sentencing jury long maintained however penry much violence many settled precedents area fundamental constitutional law command force stare decisis graham collins concurring opinion therefore agree justice scalia certificate appealability issued based upon insubstantial right derive case law long left constitution behind embraced contradiction ante dissenting opinion respectfully dissent footnotes fifth circuit stated majority criminal appeals found evidence record tennard mentally retarded described however conclusion plurality narrowest thus controlling opinion point correctly described fifth circuit conclud ing enough evidence mental retardation record support tennard claim emphasis added judge meyers concurring opinion