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ROBERT JAMES TENNARD, PETITIONER v.
DOUG
DRETKE, DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL
JUSTICE, CORRECTIONAL
INSTITUTIONS DIVISION
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
[June 24, 2004]
Chief Justice Rehnquist, dissenting.
A certificate of appealability may only issue if the applicant has made a substantial showing of the denial of a constitutional right, 28 U.S.C. § 2253(c)(2). Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy §2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district courts assessment of the constitutional claims debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484 (2000). Because I believe that reasonable jurists would not find the District Courts assessment of the constitutional claims debatable or wrong, I dissent.
The District Court conducted the
proper inquiry by examining whether Tennards evidence of
low intelligence was
In Jurek v. Texas, 428 U.S. 262 (1976), this Court held that the Texas special issues system, as a general matter, is constitutional. The special issues system guides the jurys consideration of mitigating evidence at sentencing. We have stated:
Although [Lockett v.
Ohio, 438 U.S.
586 (1978),] and [Eddings v. Oklahoma, 455 U.S. 104 (1982),]
prevent a State from placing relevant mitigating evidence
beyond the effective reach of the sentencer,
Graham, supra, at 475, those cases and others in
that decisional line do not bar a State from guiding the
sentencers consideration of mitigating evidence. Indeed,
we have held that there is no
constitutional
requirement of unfettered sentencing discretion in the jury,
and States are free to structure and shape consideration of
mitigating evidence in an effort to achieve a more
rational and equitable administration of the death
penalty.
In Penry v. Lynaugh, 492 U.S. 302 (1989) (Penry I), the Court concluded that the Texas special issues were too limited to give effect to Penrys mitigating evidence of his mental retardation and severe childhood abuse. But we have noted that Penry I did not effec[t] a sea change in this Courts view of the constitutionality of the former Texas death penalty statute, Graham, supra, at 474. Tennards evidence of low intelligence simply does not present the same difficulty that Penrys evidence did.
There is no dispute that
Tennards low intelligence is a relevant mitigating
circumstance, and that the sentencing jury must be allowed to
consider that mitigating evidence. See, e.g., Eddings
v. Oklahoma, 455 U.S. 104, 110
(1982) (
The Court concludes that [t]he
relationship between the special issues and Tennards low
IQ evidence has the same essential features as the relationship
between the special issues and Penrys mental retardation
evidence. Ante, at 14. I disagree. The first
special issue asked whether Tennard had caused the death of the
victim
The second special issue asked
contrary to Penry Ithe
evidence could be given mitigating effect in the second special
issue. In short, low intelligence is not the same as mental
retardation and does not necessarily create the Penry I
two-edged sword. 492 U.S., at 324. The two
should not be summarily bracketed together.
Because I do not think that reasonable jurists would disagree with the District Courts conclusion that the jury in this case had the ability to give mitigating effect to Tennards evidence of low intelligence through the first and second special issues, I dissent.