Robert James TENNARD, Petitioner-Appellant, v. Janie COCKRELL, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee, 284 F.3d 591

BENAVIDES, Circuit Judge: Petitioner Robert James Tennard (Ten-nard), convicted of capital murder in Texas and sentenced to death, requests from this Court a Certificate of Appealability (COA) pursuant to 28 U.S.C. § 2253(c)(2). Ten-nard’s sole argument is that the jury was unable to give effect to the mitigating evidence of his mental retardation when answering the special issue with respect to future dangerousness at the punishment phase. Finding that Tennard has not made a substantial showing of the denial of a constitutional right, we DENY the COA. I.

FACTUAL AND PROCEDURAL HISTORY On October 17, 1985, Tennard was indicted for the capital murder of Larry Neblett (Neblett) committed during the course of a robbery. The following evidence introduced at trial established that Tennard and two others murdered two men during a robbery. Tennard lived behind the home of the two victims, and he knew them. The victims had invited Tennard and his two friends into their home approximately fifteen to thirty minutes before they were attacked. Tennard stabbed one of the victims fifteen times with a knife while one of Tennard’s friends killed the other victim with a hatchet.

Tennard played a dominant role in disposing of the victims’ stolen property. Tennard presented an alibi defense, and he presented other evidence from which the jury might have concluded that another person possibly could have committed the murders. Based on the above evidence, the jury found him guilty of capital murder. The evidence from the punishment hearing shows Tennard had been on parole from a felony rape conviction for less than four months when he committed the instant offense. The rape victim testified Tennard and two others forced her into a car while she was at a bus stop.

Just after she was forced into the car, Tennard, who was displaying about a foot-and-a-half-long pipe-wrench, threatened to kill her if she moved. The victim testified Tennard and his friends took her to an abandoned apartment at a government project where Ten-nard forced her to engage in oral, vaginal and anal sex with him. After that, Ten-nard’s two friends took turns sexually assaulting her. Tennard and his friends then took the victim to another house where he began using drugs and discussing “pimping out” the victim.

She asked Tennard if she could go to the restroom to take a bath, which he allowed her to do. She escaped through a window, and Tennard was arrested later that day. The victim testified Tennard appeared to be the leader during her ordeal. Defense counsel impeached the victim’s testimony with a prior statement she made from which the jury could have inferred one of Tennard’s accomplices was the leader. Tennard’s parole officer testified that a Texas Department of Correction’s (TDC) record from his prior incarceration indicated he had an intelligence quotient (I.Q.) of 67.

During cross-examination of this witness, the State introduced the TDC record into evidence. This document appears to have been prepared approximately five years before Tennard committed the capital murder offense, and there is a notation providing Tennard had an I.Q. of 67. However, the parole officer could not say who prepared the report or conducted the I.Q. test. This is all the evidence presented at Tennard’s trial with respect to his “mental retardation.” The term “mental retardation” is not mentioned anywhere in this record.

Tennard also introduced evidence that he was twenty-two years of age when he committed this offense and that he had spent most of his formative years incarcerated. At the conclusion of the punishment phase, the jury affirmatively answered the special issues. Pursuant to Texas law, the trial court sentenced him to death. On direct appeal, the Texas Court of Criminal Appeals affirmed the conviction and sentence. Tennard v. State, 802 S.W.2d 678 (Tex.Crim.App.1990), cert. denied, 501 U.S. 1259, 111 S.Ct. 2914, 115 L.Ed.2d 1077 (1991).

Tennard filed an application for state habeas relief that ultimately was denied by the Texas Court of Criminal Appeals. Ex parte Tennard, 960 S.W.2d 57 (Tex.Crim.App.1997). Subsequently, Tennard filed the instant federal habeas petition in district court. The district court denied Tennard’s petition and his request for a COA. Tennard now requests a COA from this Court. II. ANALYSIS A. STANDARDS OF REVIEW Tennard filed his

section 2254 application for habeas relief on December 18,1998, which was after the April 24,1996 effective date of the Antiterrorism and Effective Death Penalty Act (AEDPA). His application is therefore subject to the AEDPA. Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 2068, 138 L.Ed.2d 481 (1997). Under the AEDPA, a petitioner must obtain a COA. 28 U.S.C. § 2253(c)(2). A COA will be granted only if the petitioner makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).

To make such a showing, a petitioner “must demonstrate that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.” Barefoot v. Estelle, 463 U.S. 880, 893 n. 4, 103 S.Ct. 3383, 3394 n. 4, 77 L.Ed.2d 1090 (1983) (citation and internal quotation marks omitted). Any doubt regarding whether to grant a COA is resolved in favor of the petitioner, and the severity of the penalty may be considered in making this determination. Fuller v. Johnson, 114 F.3d 491, 495 (5th Cir.1997).

To determine whether a COA should be granted, we must be mindful of the deferential scheme set forth in the AEDPA. Hill v. Johnson, 210 F.3d 481, 484-85 (5th Cir.2000).

Pursuant to 28 U.S.C. § 2254(d), we defer to a state court’s adjudication of petitioner’s claims on the merits unless the state court’s decision was: (1) “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States;” or (2) “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” A state court’s decision is deemed contrary to clearly established federal law if it reaches a legal conclusion in direct conflict with a prior decision of the Supreme Court or if it reaches a different conclusion than the Supreme Court based on materially indistinguishable facts.

Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 1519-20, 146 L.Ed.2d 389 (2000). A state court’s decision constitutes an unreasonable application of clearly established federal law if it is objectively unreasonable. Id. at 1521. Further, state court findings of fact are presumed to be correct, and the petitioner has the burden of rebutting the presumption of correctness by clear and convincing evidence.

Section 2254(e)(1). B. JURY INSTRUCTIONS Relying on Penry v. Lynaugh, Tennard argues that the special issues submitted at the punishment phase did not provide the jury with a vehicle for giving mitigating effect to his evidence of mental retardation. Specifically, Tennard contends that a juror answering the two special issues affirmatively but nevertheless believing a life sentence appropriate (based on the evidence of his mental retardation) had no vehicle to express this belief.

In reviewing a Penry claim, we must determine whether the mitigating evidence introduced at trial was constitutionally relevant and beyond the effective reach of the jury. Davis v. Scott, 51 F.3d 457, 460 (5th Cir.1995). To be constitutionally relevant, “the evidence must show (1) a uniquely severe permanent handicap with which the defendant was burdened through no fault of his own, ... and (2) that the criminal act was attributable to this severe permanent condition.” Id. at 460-61 (internal quotation marks and citation omitted).

As previously set forth, during the punishment phase, Tennard called his parole officer, William Kinard (Kinard), as a witness. Kinard testified that an I.Q. test was administered to inmates at TDC as a matter of course. Kinard also testified that a document from TDC provided Ten-nard’s I.Q. was 67. Kinard was the only defense witness who testified before the jury during the punishment phase. During defense counsel’s closing argument, he referred to Tennard’s “low” I.Q. several times: Then I called a witness who testified he’s Tennard’s parole officer.

Uncon-troverted evidence that when Robert Tennard was examined, when he got out of the penitentiary, by the officials who determined how to classify him, how to treat him, the same information that was communicated to his parole officer, what to do for him, how to help him when he’s out on parole. Information that the prison psychiatrist had, the information that they gave is that Tennard has got a 67 IQ. The same guy that told this poor unfortunate woman [the rape victim] that was trying to work that day, “Well, if I let you in there, will you leave?” And he believed her.

This guy with the 67 IQ, and she goes in and, sure enough, she escapes, just like she should have. That is uncontroverted testimony before you, that we have got a man before us that has got an intelligence quotient ... that is that low. Now you’re charged with acting as Robert Tennard’s peers. You have to judge him as his peers. That’s going to be hard for you to do. None of you grew up where he grew up. Only one of you is black and none of you are suffering from a 67 IQ. So you’re going to have to try to judge this man and decide what his punishment would be as his peers.

And I would ask you as you do that, as is your responsibility, you take into consideration the things that you have been informed of by me and by things the prosecutor has told you in judging Robert Tennard.... And don’t let [the prosecutor] get up here and tell you to put blinders on and just answer the questions in a vacuum. The law allows you to take all the things into consideration that I talked to you about — attitude toward the death penalty, take all these things into consideration, the 67 IQ — in deciding how you answer the those questions. You have a right to do that under Texas law.

Don’t let [the prosecutor] tell you you can’t just look at the evidence and just answer the questions. You are allowed more latitude than that. Remember, what you do here will be forever lasting one way or the other.... (emphasis added). As the record reveals, although defense counsel presented evidence of Tennard’s low I.Q., he did not argue that Tennard was mentally retarded. The Court of Criminal Appeals recognized that the term “mental retardation” was never mentioned in the trial record. Ex parte Tennard, 960 S.W.2d at 59.

Indeed, a majority of the Court of Criminal Appeals found “no evidence in this record that [Tennard] is mentally retarded.” Id. at 61. Under the AEDPA, we are required to afford a presumption of correctness to this factual finding. 28 U.S.C. § 2254(e)(1); see Davis, 51 F.3d at 461 n. 4 (affording a presumption of correctness to state court’s finding of no evidence that petitioner was mentally retarded). This Court has explained that evidence of a low I.Q. does not constitute a uniquely severe condition or is within the jury’s effective reach pursuant to the teachings of Penry. Andrews v.

Collins, 21 F.3d 612, 629-30 (5th Cir.1994); Lackey v. Scott, 28 F.3d 486, 489-90 (5th Cir.1994). Nevertheless, Tennard contends that an individual with an I.Q. of 67 has significantly below normal functioning and is presumptively mentally retarded. Thus, he argues, such an individual is less able than a normal adult to control his conduct, evaluate the consequences of his conduct, and learn from his mistakes. To support this proposition, Tennard points out that the American Association of Mental Retardation (AAMR) classified individuals with an I.Q. score of 75 and below as presumptively retarded.

See AAMR Mental Retardation: Definition, Classification, and Systems of Supports 14 (9th ed.1992). The flaw in Tennard’s argument is that he did not establish or argue to the jury that he was mentally retarded. A prison document provided that Tennard had an I.Q. score of 67. There was no evidence introduced with respect to the meaning of the score, nor its relation to Tennard’s moral culpability. As stated, the term “mental retardation” was never articulated before the jury. This dearth of evidence is in stark contrast to the “substantial mitigating evidence that Penry was mentally retarded.” Penry v.

Johnson, 261 F.3d 541 (5th Cir.2001). Under these circumstances, we are constrained to hold that Tennard has not rebutted the presumption of correctness afforded the state court’s finding that there was “no evidence” of Tennard’s mental retardation. Even assuming arguendo for purposes of this appeal that Tennard has rebutted with clear and convincing evidence the state court’s finding of no evidence of mental retardation, his claim must fail because he made no showing at trial that the criminal act was attributable to this severe permanent condition.

We have recognized it is not simply the fact that one is labeled mentally retarded that establishes a Penry claim. See Robison v. Johnson, 151 F.3d 256, 264 (5th Cir.1998) (citing Robison v. Texas, 888 S.W.2d 473 (Tex.Crim.App.1994)). A petitioner must show there is a nexus between the severe permanent condition (here, alleged mental retardation) and the capital murder. As in Tennard’s case, in Boyd v. Johnson, the only evidence of mental retardation introduced at trial was the petitioner’s I.Q. score of 67 contained in his prison packet. 167 F.3d 907, 912 (5th Cir.1999).

We stated that even assuming that the I.Q. score of 67 demonstrates a “ ‘uniquely severe permanent handicap,’ it does not establish ‘that the criminal act was attributable to this severe permanent condition.’ ” Id. (quoting Davis, 51 F.3d at 461). Moreover, we expressly have rejected the notion that “a nexus is inherent between any evidence of mental retardation and a crime.” Harris v. Johnson, 81 F.3d 535, 539 n. 11 (5th Cir.1996).

Tennard is precluded from establishing a Penry claim because he failed to introduce at trial any evidence indicating that the capital murder was in any way attributable to his I.Q. of 67. See Crank v. Collins, 19 F.3d 172, 175-76 (5th Cir.1994) (stating that it is well established capital defendants cannot base a Penry claim upon evidence that could have been, but was not, proffered at trial). For the above reasons, we conclude that Tennard has not made a substantial showing of the denial of a constitutional right and DENY his request for a COA. DENIED. .

The facts are taken directly from the opinion of the Texas Court of Criminal Appeals. Ex parte Tennard, 960 S.W.2d 57, 58-59 (Tex.Crim.App.1997). . During cross-examination, Tennard's parole officer testified as follows: Q. [T]his doesn’t purport to be any report by any particular psychologist or anything, does'it? A. No, sir. Q. It’s basically just sort of, as its says, social and criminal history of [Tennard]? A. Right, sir. Q. And it says, there’s basically a line for IQ, and it says 67? A. That’s correct. Q. And it has no indication of who may have given those tests or under what conditions? A.

No sir, it doesn’t. . 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989). . The record shows that the trial court did not allow defense counsel to call a witness who would have testified that one of Tennard’s accomplices received a life sentence for the instant offense. . Additionally, in a concurring opinion, Judges Meyers and Price concluded that there was not enough evidence of mental retardation in the record to support Tennard's claim. 960 S.W.2d at 67 n. 9. Judge Baird dissented, opining that Tennard’s I.Q. of 67 was “presumptive of his mental retardation.” Id. at 71. .

See also Davis, 51 F.3d at 460 (explaining that "evidence of a disadvantaged background, or emotional and mental problems, does not raise, ipso facto, a Penry claim").