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INTEREST OF AMICUS CURIAE

The Criminal Justice Legal Foundation (CJLF)⁽¹⁾ is a non-profit California corporation organized to participate in litigation relating to the criminal justice system as it affects the public interest. CJLF seeks to bring the constitutional protections of the accused into balance with the rights of the victim and of society to rapid, efficient, and reliable determination of guilt and swift execution of punishment.

This case involves the proper interpretation of Congress's landmark reform of habeas corpus law in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). This law, if properly implemented, will greatly reduce unnecessary delay in the enforcement of capital punishment and reduce the number of correct criminal judgments erroneously overturned on federal habeas. These changes would advance the rights of victims and society which CJLF was formed to protect.

SUMMARY OF FACTS AND CASE

In 1977, in two separate incidents, petitioner Johnny Penry raped two women at knife-point. See J. A. 19-20. In the second incident, he demonstrated sufficient mental capacity to deceive the victim. At the request of defense counsel, Penry was examined for competency by Dr. Felix Peebles. J. A. 125. The case was resolved by plea bargain, with a sentence of five years on one count and dismissal of the other. J. A. 129-130.

On October 25, 1979, Penry raped Pamela Carpenter. J. A. 21-23. Having learned the consequences of leaving a living victim to testify, he stabbed her, J. A. 23-24, with a knife he had brought for that purpose. J. A. 21-22. Mrs. Carpenter died later that day, after describing her attacker. J. A. 873-874.

Penry's first death sentence was set aside by this Court on habeas corpus in Penry v. Lynaugh, 492 U. S. 302, 328 (1989) ("Penry I"), on the ground that the instructions, as applied to the case, did not provide the jury "with a vehicle for expressing its 'reasoned moral response' to [Penry's mitigating] evidence in rendering its sentencing decision."

On retrial, the defense's psychiatric expert relied on Dr. Peebles' report. J. A. 326-327. The prosecution expert relied on the same report. J. A. 456. The experts disagreed as to whether Penry was, in fact, mentally retarded. J. A. 279, 482.

The Court gave supplemental instructions on mitigating evidence and personal culpability designed to remedy the problem in Penry I. See J. A. 675. The jury returned "yes" answers to the special issues, and Penry was sentenced to death. The Texas Court of Criminal Appeals affirmed, after reviewing "135 points of error," in an opinion spanning 108 pages of the Joint Appendix. Penry's case was further reviewed by the same court on habeas corpus, J. A. 863, following an evidentiary hearing and extensive findings of fact by the trial court. J. A. 795-862. The United States District Court then thoroughly reviewed Penry's claims on federal habeas. J. A. 865-1036. The Court of Appeals denied a certificate of appealability. J. A. 1037. This Court granted a writ of certiorari.

SUMMARY OF ARGUMENT

The issue of availability of relief under 28 U. S. C. §2254(d) should be addressed as a threshold matter, before and usually in lieu of the merits of the underlying decision, to avoid advisory opinions and to further the purpose of the statute.

The state court decision is not contrary to Penry I, as the present case is more than materially distinguishable on both the instructions and the prosecutor's argument. The state court correctly recognized and reasonably applied Penry I and Boyde v. California.

The question of whether the rule of Estelle v. Smith should be extended to the facts of the present case should be analyzed under the "clearly established" element of the statute, and the analysis is essentially the same as under Teague v. Lane. The present case differs markedly from Smith, in that the mental examination (1) was requested by defense counsel; (2) related to a prior crime for which criminal proceedings had concluded; and (3) was relied on by the defense's own expert. Extension of Smith to these facts would be a new rule, and a wrong rule.

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1. Rule 37.6 Statement: This brief was written entirely by counsel for amicus, as listed on the cover, and not by counsel for any party. No outside contributions were made to the preparation or submission of this brief.

Both parties have given written consent to the filing of this brief.