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Part II of petitioner's brief does not mention 28 U. S. C. §2254(d) or the cases construing it at all, other than a quotation of the Court of Appeals opinion. See Brief for Petitioner 29. Regardless of which of the exceptions to the general rule of claim preclusion he might invoke, though, none applies. See supra, at 9.
What petitioner seeks, in essence, is an extension of the rule of Estelle v. Smith, 451 U. S. 454 (1981) to a factual setting substantially different from the one in that case. The Texas Court of Criminal Appeals held "Estelle is inapplicable to the facts of this case." J. A. 767. That holding was neither contrary to nor an unreasonable application of clearly established law.
Although Williams v. Taylor, 529 U. S. 362, 407-409 (2000) largely endorsed the interpretation of 28 U. S. C. §2254(d)(1) in Green v. French, 143 F. 3d 865, 869-870 (CA4 1998), it neither adopted nor rejected one prong of Green. That was Green's assertion "that state court decisions that unreasonably extend a legal principle from our precedent to a new context where it should not apply (or unreasonably refuse to extend a legal principle to a new context where it should apply) should be analyzed under §2254(d)(1)'s 'unreasonable application' clause." Williams, 529 U. S., at 408. The Court expressly left this question open. Id., at 408-409.
The plurality opinion in Ramdass v. Angelone, 530 U. S. 156, 147 L. Ed. 2d 125, 135-136, 120 S. Ct. 2113, 2119-2120 (2000) seems to say that Williams did accept this prong of Green. This is a curious passage. If the opinion is merely summarizing the holding of Williams, it is mistaken. A second interpretation is that Ramdass went ahead and decided a question Williams expressly reserved by simply making a bald statement with no discussion. That seems unlikely. The best interpretation under the circumstances, amicus submits, is that the Ramdass plurality assumed for the sake of argument that the reserved prong of Green was valid and decided the petitioner's claim did not qualify for it. See id., 147 L. Ed. 2d, at 137-138, 120 S. Ct., at 2121. The concurring opinion does not cite or rely on this "unreasonable refusal to extend" test. See id., 147 L. Ed. 2d, at 143-145, 120 S. Ct., at 2126-2128. The question should therefore be regarded as still open.
Amicus CJLF submits that the Williams Court's skepticism of this test was well-founded. It is an unnecessary complication of an already complex rule and resolves no issues which cannot be resolved under the other prongs.
Most true "extension" issues are best analyzed under the "clearly established" requirement, where a substantial body of case law already exists. As applied to Supreme Court precedents, "clearly established Federal law" is equivalent to "old rules" under Teague v. Lane, 489 U. S. 288 (1989). Williams, supra, 529 U. S., at 412. Conversely, a "new rule" is not "clearly established." "Thus, applying Teague principles, 'clearly established federal law as determined by the Supreme Court of the United States' means that the rule sought by petitioner must have been dictated or compelled by" the pertinent Supreme Court precedents. Harris v. Stovall, 212 F. 3d 940, 944 (CA6 2000).
Much of the Teague line of cases deals with extension of existing rules to different situations. Butler v. McKellar, 494 U. S. 407, 415 (1990) held that extension of the rule of Edwards v. Arizona, 451 U. S. 477, 485 (1981) to a different offense was a new rule. Caspari v. Bohlen, 510 U. S. 383, 393 (1994) held that extension of the rule of Bullington v. Missouri, 451 U. S. 430 (1981) to noncapital cases would be a new rule. Stringer v. Black, 503 U. S. 222, 228-229 (1992) held that application of the rule of Godfrey v. Georgia, 446 U. S. 420, 428-429 (1980), on vague death-eligibility circumstances, to a differently worded but substantially equivalent circumstance, was not a new rule. Lambrix v. Singletary, 520 U. S. 518 (1997) rejected a contention that Espinosa v. Florida, 505 U. S. 1079 (1992) (per curiam) was merely "applying Godfrey to Florida's sentencing scheme," see Lambrix, 520 U. S., at 542 (Stevens, J., dissenting), rather than a new rule.
Between Williams' linkage of Teague with "clearly established" and this well-developed body of case law, there is no need for a separate "extension" analysis under the "unreasonable application" clause of §2254(d)(1). The refusal to extend would only be unreasonable if extension were dictated by precedent, and so the Teague case law covers the base. Williams involved the unwarranted extension of Lockhart v. Fretwell, 506 U. S. 364 (1993) to a new context where its rationale did not apply. Part III of Justice O'Connor's opinion, applying the test adopted by a majority in part II, rejects this analysis as contrary to clearly established federal law. See Williams, supra, 529 U. S., at 413. There is no need to resort to the "unreasonable application" prong for issues of this type.
Petitioner's Estelle v. Smith claim can be decided under AEDPA the same as it would have been under Teague, with the caveat that "clearly established law" is restricted to Supreme Court precedent. See Williams, supra, 529 U. S., at 412. If the application of the rule of Estelle v. Smith to these facts was dictated by Supreme Court precedent existing in 1995, then the state court decision is contrary to clearly established law and not protected by §2254(d)(1). If not, the state court resolution of this issue stands. As we will show in the next part, the present case is so far removed from Smith that applying it here would not only be a new rule, it would be a wrong rule.
Penry claims that the admission of Dr. Peebles' report, along with the District Attorney's references to it at trial, violated Estelle v. Smith, 451 U. S. 454 (1981), because the report asserted that releasing Penry from custody would be dangerous. See Brief for Petitioner 6, 24. Contrary to Penry's assertion, this does not place Smith "in point" with the present case. The Smith rule was brought about by "the 'distinct circumstances' of that case, 451 U. S., at 466--the trial judge had ordered, sua sponte, the psychiatric examination and Smith neither had asserted an insanity defense nor had offered psychiatric evidence at trial." Buchanan v. Kentucky, 483 U. S. 402, 422 (1987). Smith's "distinct circumstances" are not present here. Penry's counsel for his prior rape case knew about and approved the examination. Any incriminating statements made during the examination must only have been about the prior rape, a crime for which the defendant's self-incrimination privilege had ended long before the present trial. Penry also raised a mental health issue in the penalty phase, relying in part upon expert testimony to prove his point. This case is thus far beyond the Smith rule, which is itself at the outer limits of Miranda v. Arizona, 384 U. S. 436 (1966). Contrary to the petitioner's claims, Smith is not "in point." Cf. Brief for Petitioner 25. It is not even close.
Since the Smith rule was a response to the distinct circumstances of that case, an understanding of the particular facts of that case is essential to the proper application of that decision. First, Smith's competency exam was ordered without his counsel's knowledge or consent. See Smith, supra, 451 U. S., at 470-471. Smith therefore had no opportunity to consult with counsel before making a crucial decision about his penalty phase defense. See id., at 471. While this fact was most relevant to the Sixth Amendment portion of Smith, see ibid., it also influences the Fifth Amendment analysis. Smith is an extension of Miranda. See id., at 466-467. Miranda is itself premised on the need to combat the compulsion inherent in custodial interrogation where the suspect has not yet been able to consult with counsel. See Miranda, supra, 384 U. S., at 466. The Fifth Amendment analysis is much different if the suspect may first consult with counsel before the examination. See infra, at 25.
A second component of Smith is that the defense raised no mental health issues in that case. If the defense raises the issue of the defendant's mental health, then both fairness and accuracy require that the defendant submit to an examination conducted by the prosecution's expert. See Smith, supra, 451 U. S., at 465-466 (summarizing the treatment of the insanity defense in the federal circuits); Buchanan, supra, 483 U. S., at 423-424. Just as testimony waives the Fifth Amendment privilege with respect to the subject matter of the testimony, see Mitchell v. United States, 526 U. S. 314, 321 (1999), so the defendant who places his or her mental health at issue must allow the prosecution a reasonable chance to rebut the defense's case. The only mental health evidence in Smith was Dr. Grigson's testimony, see 451 U. S., at 458-460, 466, so there was no Fifth Amendment waiver with respect to Grigson's examination of the defendant.
The last part of the Smith mosaic is how the state incriminated the defendant through the competency examination. Dr. Grigson's future dangerousness opinion was based largely upon the account of the crime given by Smith during the competency examination. See Smith, supra, 451 U. S., at 463-464. When the defendant's description of the crime is used as a basis for his death sentence for that particular crime, the Fifth Amendment is clearly implicated. See Mitchell, 526 U. S., at 326. Descriptions of past crimes for which the defendant has already been sentenced do not raise these Fifth Amendment concerns. As amicus will demonstrate, none of these factors are present in this case. Therefore, Smith does not control.
The first major distinction between Smith and the present case is that in this case counsel requested the psychiatric examination that generated Dr. Peebles' report, while in Smith the trial court ordered the exam without consulting with counsel. See Penry v. Johnson, 215 F. 3d 504, 511 (CA5 2000); Penry v. State, 903 S. W. 2d 715, 759-760 (Tex. Crim. App. 1995); Smith, supra, 451 U. S., at 470-471. In addition to eliminating any Sixth Amendment claim, see Buchanan, supra, 483 U. S., at 424-425, this fact also mitigates the need to protect the defendant's self-incrimination privilege through the Miranda warnings. Since Smith's Fifth Amendment holding is simply an extension of Miranda, see Smith, supra, 451 U. S., at 469, if the Miranda warnings were unnecessary during Dr. Peebles' examination, then Smith does not support defendant's Fifth Amendment claim.
The Miranda rule is premised upon the inherent compulsion of uncounseled custodial interrogation. See Miranda, supra, 384 U. S., at 465-466. Counsel plays a vital role in mitigating this pressure in Miranda's scheme. "The rule in Miranda . . . was based on this Court's perception that the lawyer occupies a critical position in our legal system because of his unique ability to protect the Fifth Amendment rights of a client undergoing custodial interrogation." Fare v. Michael C., 442 U. S. 707, 719 (1979). Consultation with counsel before questioning would substantially alleviate the inherent pressures on the suspect that brought about Miranda. In the Smith context, consultation with counsel can help make the defendant aware of the potential consequences of the examination, and his right not to answer certain questions, as counsel can be trusted to adequately warn his client. Cf. Smith, supra, 451 U. S., at 468 (suspect not informed of the potential gravity of the examination). The Smith Court sought to prevent the defendant from providing unwitting assistance to the state's case for executing him. See id., at 466. Where the defendant's counsel has requested the psychiatric examination, this threat is minimized.
It is true that consultation with counsel does not by itself satisfy Miranda as applied to the interrogation room. Thus, the defendant has the right to have an attorney present during custodial questioning in addition to any prior consultation with counsel. See Miranda, supra, 384 U. S., at 470. But no similar right exists with respect to psychiatric examinations. In Smith, the defendant did not even assert a right to the presence of counsel during his examination. Smith, supra, 451 U. S., at 470, n. 14. "In fact, the Court of Appeals recognized that 'an attorney present during the psychiatric interview could contribute little and might seriously disrupt the examination.' " Ibid. Although this statement addressed the Sixth Amendment right to counsel rather than Miranda, and was dictum, the Miranda rule does not include a right to counsel's presence during a psychiatric examination. An effective psychiatric examination is impossible so long as a third party like defense counsel is present. Therefore, under Smith, consultation with counsel is sufficient.
"The real teaching of Miranda, and Estelle's application of it, is not a rigid formula, but that the Fifth Amendment must be protected." People v. Wright, 430 N. W. 2d 133, 139 (Mich. 1988). When counsel has arranged for the examination, the concerns that prompted the holdings of Smith and Miranda are abated. The defendant can go into the examination with the complete knowledge of his rights. Cf. id., at 138 (Smith distinguished where examination took place "after [defendant] . . . had the assistance of counsel throughout the trial"). Although Penry's counsel in the prior rape case almost certainly did not warn him about the potential use of Dr. Peebles' conclusions to support a death sentence for some future capital crime, this does not change the analysis. Instead, as the next section demonstrates, the impossibility of predicting the future use of the examination simply underscores the fact that Dr. Peebles' interview with the defendant and his subsequent report did not incriminate Penry.
Perhaps the most telling difference between this case and Smith is that Penry's examination took place before he committed the capital murder that is the subject of the present case. Because Dr. Peebles' examination of him took place to determine his competency to stand trial for a separate, earlier crime, the admission of Dr. Peebles' statement in the 1990 capital murder trial did not violate Penry's self-incrimination privilege.
The Smith Court found a violation of the Fifth Amendment privilege because the expert's future dangerousness finding in that case largely relied upon Smith's account of the murder during his examination by Dr. Grigson. See Smith, supra, 451 U. S., at 464. Thus, while in Smith "the ultimate penalty of death was a potential consequence of what respondent told the examining psychiatrist," id., at 462, that was not true at the time Dr. Peebles examined Penry. The examination only threatened Penry's interest after his subsequent rape and murder of Pamela Carpenter. While the self-incrimination privilege may protect the suspect from the ghosts of crimes past and present, it cannot extend to crimes yet to come.
If Penry's Fifth Amendment privilege was violated in this interview, it could only have been with respect to the 1977 rape case for which the examination was conducted. A suspect's privilege against self-incrimination is not eternal. "It is true, as a general rule, that where there can be no further incrimination, there is no basis for the assertion of the privilege. We conclude that principle applies to the cases in which the sentence has been fixed and the judgment of conviction has become final." Mitchell, supra, 526 U. S., at 326 (emphasis added).
Dr. Peebles' statement was admitted long after Penry had pleaded guilty and been sentenced for the 1977 rape. Although the privilege survives the guilt verdict and extends into the sentencing phase of the trial, id., at 325, it does end after sentencing. Since Penry could no longer be incriminated with respect to the 1977 rape case, admitting Dr. Peebles' report at the trial for the subsequent rape and murder did not violate his Fifth Amendment rights. This report was simply part of Penry's psychological history, just like the school and institutional records routinely considered in such cases.
The final major difference between Smith and this case is that Penry made his mental state an issue in this case. At the sentencing hearing, the defense called as an expert Dr. Randall Price, a psychologist who testified about "neuropsychology, organic brain damage, mental retardation, and the effects of malingering on various psychological tests." Penry v. State, supra, 903 S. W. 2d, at 763. As part of the basis for his opinion on Penry's mental retardation, Dr. Price relied on Dr. Peebles' report. J. A. 327. Since Penry utilized both mental health expert evidence and Dr. Peebles' report, Texas cannot be faulted for providing the jury with the complete picture of Dr. Peebles' assessment of Penry.
When the defendant "presents psychiatric evidence, then, at the very least, the prosecution may rebut this presentation with reports of the examination that the defendant requested." Buchanan, supra, 483 U. S., at 422-423 (emphasis added). The present case is thus far closer to Buchanan than it is to Smith. Dr. Peebles' reexamination was done at the request of Penry's counsel, and the report that followed was relied on partly by defendant's psychiatric witness in an attempt to convince the jury that he did not deserve the death penalty because he was mentally retarded. Texas deserved its fair chance to rebut Penry's case.
The fact that the defense's expert only addressed Penry's alleged mental retardation and not his future dangerousness does not change the analysis. While Penry was able to argue that his mental condition made him undeserving of a death sentence, see Part III B, supra, the state must also be able to rebut this by arguing that his condition makes him a continuing danger to society. That is the conclusion reached by Dr. Peebles' report. See J. A. 60. Dr. Peebles was tragically right, as Penry raped and murdered Pamela Carpenter only two years after the 1977 rape.(2)
Thus Penry's claim that the Fifth Amendment waiver doctrine did not support admitting Dr. Peebles' report cannot stand. It is true that the act of testifying only waives the self-incrimination privilege with respect to the contents of the testimony. See Mitchell, supra, 526 U. S., at 321. However, the report cannot be neatly cleaved from Penry's case, since his own expert relied on it, and it helped rebut psychiatric evidence that Penry introduced. "Nice questions will arise" concerning the scope of the initial testimony and whether the cross-examination "are comprehended within its scope . . . ." Id., at 321-322. The waiver issue is at best a "nice question," precisely the kind of question Congress decided to limit to direct review. See supra, at 19.
Letting Texas provide the jury with an accurate picture of Penry's mental state is fair. He cannot complain about the state utilizing a report that his own expert relied upon to introduce the issue of his mental retardation. Penry's self-incrimination interest in a report concerning an earlier crime for which he has already served his sentence is remote at best. Furthermore, his need for the Miranda warnings before the examination was ameliorated by his counsel's request for the exam. Under these circumstances Smith is not controlling, and Penry's Fifth Amendment right was not violated.
The present case is materially distinguishable from Smith, and extension of Smith to the context of the present case is not dictated by Supreme Court precedent. Therefore, 28 U. S. C. §2254(d)(1) precludes collateral attack on the final judgment of the Texas Court of Criminal Appeals.
The decision of the Court of Appeals for the Fifth Circuit should be affirmed.
February, 2001
Respectfully submitted,
Kent S. Scheidegger
Counsel of Record
Charles L. Hobson
Attorneys for Amicus Curiae
Criminal Justice Legal Foundation
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2. As the state argues in its brief, admission of the report was surely harmless, even if error. A mere psychiatrist's prediction of future dangerousness on top of Penry's actual, subsequent acts of rape and murder is like a feather on top of an anvil.