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PENRY v. JOHNSON

United States Supreme Court No. 00-6677

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QUESTIONS PRESENTED:

1. In a case where the Texas "special issues," which were found inadequate as applied in Penry v. Lynaugh, are supplemented with instructions to answer an issue "no" if a life sentence is the appropriate response to defendant's mitigating evidence, is the state court decision affirming the sentence contrary to or an unreasonable application of Penry v. Lynaugh and Boyde v. California?

2. Where a competency examination from an earlier, unrelated case, in which it was requested by defense counsel, is used in the penalty phase for a subsequent crime, is the state court decision finding Estelle v. Smith inapplicable contrary to clearly established Federal law?

ORAL ARGUMENT DATE: March 27, 2001

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INTRODUCTION

Interest of amicus curiae
Summary of facts and case
Summary of argument

Part I

I. The AEDPA issue should be resolved first, as a "threshold matter"

Parts II - III

II. The state court decision on the jury instruction is not "contrary to . . .  . clearly established Federal law, as determined by the Supreme Court . . .  ."

A. Rule selection
B. "Materially indistinguishable"

III. The state court reasonably applied Penry I and Boyde to the facts of this case

A. The standard
B. The applicaiton
1. The instructions
2. "Nullification"
3. Studies
4. Context

Parts IV - Conclusion

IV. The Estelle v. Smith question under AEDPA is essentially the same as under Teague

V. The use of Dr. Peeble's report did not violate Estelle v. Smith

A. Smith's particular circumstances
B. Counsel's choice
C. No incrimination
D. The complete picture

Conclusion