McGowen v. Thaler (717 F. Supp. 2d 626, 2010)

MEMORANDUM AND ORDER

MELINDA HARMON, District Judge.

Roger Wayne McGowen, a Texas inmate incarcerated under a capital conviction and death sentence, has filed a federal petition for a writ of habeas corpus. McGowen’s petition claims that error infected both his conviction and sentence. Respondent seeks summary judgment. For the reasons discussed below, the Court finds that constitutional error in the punishment phase jury instructions require that Texas either (1) commute his sentence to one of life imprisonment or (2) hold a new sentencing hearing. This Court’s review of the record, the pleadings, and the law, however, shows that habeas relief is unavailable with respect to McGowen’s conviction. The Court will discuss the reasons for these rulings at length below.

BACKGROUND

On March 11, 1986, a masked assailant shot Marion Pantzer while he attempted to rob a bar she owned in Houston. Shortly before the murder an African-American male entered the “Just Marion and Lynn’s Club” in Houston. The bartender, Pedro Flores, noted that the man’s presence was unusual, as the club catered to a lesbian clientele. After playing pool for a few minutes, the man — later identified as McGowen’s cousin Kerwin Kindle — left.

At around 12:45 a.m., a man wearing a ski mask and carrying a long-barreled gun entered the bar. The gunman wordlessly motioned his weapon at Mr. Flores, which he understood as a demand for the money in the cash register. His stance, described by Mr. Flores as being in a “shooting position,” left no question but that a robbery was in progress.

As Mr. Flores started walking toward the cash register, he noticed Ms. Pantzer sitting at the end of the bar talking to an employee. Ms. Pantzer slowly reached for the gun she usually had tucked into her pants. The next moments were ones of violent confusion. Mr. Flores opened the cash register, he saw Ms. Pantzer draw her weapon, he saw fire come from the gunman’s pistol, and he then heard two shots. Ms. Panzer fell from her chair as the gunman fled. In the confused moments, Mr. Flores could not tell who had shot first.

The police did not arrive for about thirty minutes. Before they came, Kindle reentered the bar. Kindle lingered during the subsequent crime scene investigation. The police initially recovered Ms. Pantzer’s weapon and a spent bullet casing on the floor near her body. The medical examiner later removed a hollow-point bullet from her body. The police, however, did not recover the bullet fired by Ms. Pantzer until Kindle pointed it out to them.

The police initially did not have any good leads on the gunman’s identity, though they pursued several lines of investigation. The robbery and murder at the “Just Marion and Lynn’s Club” was similar to several other crimes in the immediate vicinity. A group of men had targeted homosexual bars, adult entertainment establishments, and other businesses in the nearby area. Investigation divulged that a license plate number from a similar robbery approximated that of McGowen’s car. McGowen, who already had a history of armed robbery, became a suspect in several crimes. A witness from an aggravated robbery identified McGowen from a photo array. The police obtained an arrest warrant for McGowen.

On April 29, 1986, the police arrested McGowen at his apartment, which was located only a half mile from the “Just Marion and Lynn’s Club.” The police told him that he was under arrest for one robbery, and a suspect in several others. A search of his apartment turned up evidence that incriminated him in other crimes, but not in the murder of Ms. Pantzer. The police took him to the station for questioning.

The police informed McGowen of his constitutional rights before interviewing him. Initially, McGowen denied any involvement in robberies or any knowledge of the murder, but instead accused Kindle of committing those crimes. After about an hour and a half, McGowen signed a written statement admitting to his involvement in several robberies.

The police then questioned McGowen about the murder. McGowen initially blamed Kindle, but confessed when the police pointed out that Kindle had returned to the crime scene and found a bullet. McGowen admitted that he had murdered Ms. Pantzer, though he qualified that he only fired because she shot at him. A police officer summarized McGowen’s confession into a written statement that McGowen signed. The statement provided the following account of the crime:

Prior to making this statement, I have been warned by Sergeant R.L. Maxey. I am giving this statement to Sergeant Maxey in regards to a shooting I was involved in. I do not remember what date it was, but it was a couple of months ago, My cousin, Kerwin, and I went to a bar on Richmond street just on the other side of Montrose. We went there to rob it. We went in Kerwin’s car, which is a '75 or '76 Monte Carlo. It is brown. Kerwin parked his car down a side street from the bar. I got out of the car. I had a .38 revolver and a gray ski mask. I had the ski mask over my face.

When I walked in the bar, I saw an older white lady sitting by the bar. She stood up and started walking towards me. I started to walk towards her. All of a sudden, she came up with a gun, and she fired a shot at me. I did not see where she got the gun from, and I was not expecting it. As soon as I saw the gun, I started backing up, trying to get away, She then fired at me one time. I guess it was just a frightened reaction by me, but my gun went off. I did not even know if I had hit her because I kept running out of the club.

I ran to the ear, and Kerwin and I drove back to the apartment. Sergeant Maxey has told me that Kerwin went back inside the club and talked to the police officers, but I did not know Kerwin did that. He told me he was going to drive by, but I did not know he went inside. That same night, I gave Kerwin the gun. I do not know what he did with it. I vvant to say that I did not go in the club to hurt anyone. If the woman had not shot at me, I would not have gotten so scared and my gun would not have gone off.

The State of Texas charged McGowen with capital murder committed in the course of an attempted robbery. Trans, at 3, 5, 12. A grand jury also indicted McGowen and Kindle for aggravated robbery. Trans, at 3. McGowen stood trial in the 339th District Court, Harris County, Texas. The trial court appointed Ronald Mock and George Godwin to represent McGowen.

Trial counsel’s early strategy was to attack the only evidentiary factor that linked McGowen to the murder — his confession. Eyewitnesses had provided conflicting and vague accounts of the gunman. No physical evidence remained to link McGowen to the crime. The police never recovered the murder weapon. No one came forward to relate incriminating statements by the shooter. McGowen’s confession was the only connection between him and the crime, though it was a strong one. Trial counsel’s best chance in representing McGowen was to keep his police statements from coming before the jury.

Trial counsel filed a “Motion for Hearing on Voluntariness of any Admission or Confession Whether Written or Oral.” Trans, at 57. Trial counsel made general arguments, such as that McGowen was “substantially deprived of his freedom by the attendant conduct of the officers and the surrounding circumstances.” Trans, at 57. The motion itself, however, did not give any strong reason for the suppression of his statements.

On May 14, 1987, four days before trial, the trial court held a hearing on the voluntariness of McGowen’s confession. The police officers testified that they read McGowen’s rights and assured that he knowingly and voluntarily confessed. McGowen also testified. He hinted that he had been using drugs in the hours before confessing. He explained that he had felt nervous, scared, and intimidated when he confessed. He claimed that the police never read him his rights. Trial counsel’s questioning emphasized that the police violated state law because they did not take McGowen before a state magistrate before he gave his statements. The hearing, however, did not show any police overreaching, coercion, or malfeasance.

The trial court orally denied the motion to suppress. The trial court subsequently issued findings of fact and conclusions of law denying McGowen’s attempt to suppress the confession. The trial court found no problem with the manner in which the police took McGowen’s two statements. The trial court concluded that McGowen’s two statements “were voluntary, given after being properly informed by the officers, and made after knowingly and intelligently waiving the rights afforded to a defendant in custody.” Trans, at 170. Specifically, the trial court found: “There was no force, threats, coercion, or tricks used on the defendant, and there were no inducements or promise made to the defendant to cause him to make either statement.” Trans, at 169. The trial court recognized that it would have been better practice for the police to take him before a magistrate to receive his warnings, “but the failure of the police to do so does not invalidate his two statements!!]” Trans, at 171.

The best hope for securing an acquittal was no longer available to the defense. Trial counsel thus adopted a strategy which, while still hinting that problems existed with the confession, would focus on McGowen’s mental state when he fired the killing shot. In essence, trial counsel challenged the intent requirement for capital murder by arguing that he only responded in self-preservation when Ms Pantzer shot at him. Given McGowen’s confession to the murder, trial counsel chose not to challenge his identity.

The guilt/innocence portion of McGowen’s trial lasted one day. The prosecution called witnesses to describe the circumstances of the crime and Ms. Pantzer’s death. The prosecution relied on McGowen’s statement to prove his guilt. The jury found him guilty of capital murder.

In a separate punishment hearing, then-applicable Texas law required the jury to answer three special issue questions:

Special Issue No. 1

Was the conduct of the defendant, Roger Wayne McGowen, that caused the death of the deceased committed deliberately and with the reasonable expectation that the death of the deceased or another would result?

Special Issue No. 2

Is there a probability that the defendant, Roger Wayne McGowen, would commit criminal acts of violence that would constitute a continuing threat to society?

Special Issue No. 3

Was the conduct of the defendant, Roger Wayne McGowen, in killing the deceased unreasonable in response to the provocation, if any, by the deceased?

Trans, at 183-85.

The prosecution presented a strong, almost overwhelming, punishment case against McGowen. The prosecution brought forth witness after witness who testified about McGowen’s lawlessness and violence. The police charged McGowen with aggravated robbery in 1982. Imprisonment did not halt his lawlessness. Thereafter, McGowen sustained himself through stealing. Along with several others, McGowen perpetually was involved in armed robbery, sometimes stealing from the same business repeatedly. McGowen and an accomplice had robbed one establishment approximately ten times. McGowen had used both guns and knives while engaging in crime. McGowen had agreed to kill another man in exchange for drugs, but had only robbed and shot him. The prosecution convincingly argued that the only way to stop McGowen’s escalating criminality was for the jury to return a death sentence.

As the Court will discuss at length below, the defense made a feeble effort to secure favorable answers to the special issues. The defense called McGowen’s two sisters as its only punishment phase witnesses. McGowen’s sisters described his poor, disadvantaged upbringing and provided information about his good character. Trial counsel used their testimony both to seek mercy and to help explain why McGowen had chosen to live without regard for the law.

The jury answered the special issues in a manner requiring the imposition of a death sentence.

The Court of Criminal Appeals affirmed McGowen’s conviction and sentence on direct appeal in 1991. McGowen v. State, No. 69,855 (Tex.Crim.App. Dec. 2, 1991) (unpublished). Importantly, the Court of Criminal Appeals rejected McGowen’s claim that the jury could not adequately consider his mitigating evidence.

McGowen filed a state habeas application in 1996. McGowen’s initial state habeas application raised two issues: (1) the trial court should have instructed the jury on the lesser-included offense of simple murder and (2) trial counsel should have retained an expert to perform a “biopsychosocial assessment” for use in the punishment phase. State Habeas Record at 2-18. In 1997, McGowen filed an amended state habeas application raising several new claims, including that trial counsel inadequately investigated his innocence. State Habeas Record at 26-78. The state habeas court ordered McGowen’s trial attorneys to prepare affidavits explaining their efforts in his defense. After the State filed a response, the state habeas court ordered supplemental briefing on McGowen’s claim that trial counsel inadequately presented mitigating evidence. State Habeas Record at 242.

The state habeas court’s subsequent findings and conclusions addressed the merits of all claims from McGowen’s initial and amended state habeas applications. State Habeas Record at 391-410. In 2006, the Court of Criminal Appeals adopted the findings and conclusions addressing the claims McGowen raised in his initial state habeas application and denied relief. The Court of Criminal Appeals, however, refused to consider the claims from McGowen’s amended state habeas application:

This Court has also reviewed a document entitled “Amended Application for Writ for Habeas Corpus.” Applicant presents ten allegations in this “amended” application. Because this document was filed after the deadline provided for an initial application for habeas corpus, we find it to be a subsequent application. See Art. 11.071. We further find that the allegations fail to meet one of the exceptions provided for in Section 5 of Article 11.071 and, thus, we dismiss this subsequent application as an abuse of the writ. In dismissing the subsequent application, we also expressly reject all findings and conclusions related to the claims presented therein.

Ex parte McGowen, WR-64, 992-01 & 64,-992-02, 2006 WL 2615541 (Tex.Crim.App. Sep. 13, 2006).

This federal action followed. McGowen filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254. This Court stayed the federal proceedings while McGowen filed a successive state habeas action. After the Court of Criminal Appeals dismissed McGowen’s successive application as an abuse of the writ, Ex parte McGowen, No. WR-64,992-03, 2008 WL 5050080 (Tex.Crim.App. Nov. 26, 2008), the Court reopened this case. McGowen amended his petition. McGowen raises sixteen claims in his amended federal habeas corpus petition:

1. Texas’ special issue questions did not provide an adequate vehicle for consideration of McGowen’s mitigating evidence as required by Penry v. Lynaugh, 492 U.S. 302 [109 S.Ct. 2934, 106 L.Ed.2d 256] (1989) and its progeny;

2. The jury engaged in misconduct by considering extraneous information after the guilt/innocence phase;

3. Trial counsel provided ineffective assistance by not adequately addressing juror misconduct;

4. The evidence insufficiently supported the jury’s affirmative response to the deliberateness special issue;

5. The evidence insufficiently supported the provocation special issue;

6. The trial court violated McGowen’s rights by refusing to define the term “deliberately,” as used in the first special issue;

7. The Constitution requires Texas to offer a life-without-parole sentencing option;

8. McGowen’s death sentence violates the Constitution because his jury was not given the option to sentence him to life without parole;

9. Subsequent legislative amendments to the future dangerousness special issue make MeGowen’s sentence invalid;

10. Trial counsel provided ineffective assistance by not adequately investigating and presenting evidence of McGowen’s innocence and mitigating evidence;

11. McGowen is actually innocent of capital murder;

12. The State violated the Constitution by not disclosing exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83 [83 S.Ct. 1194, 10 L.Ed.2d 215] (1963);

13. The length of McGowen’s stay on death row constitutes cruel and unusual punishment;

14. Texas’ capital sentencing statute unconstitutionally affords the sentencing jury too much discretion;

15. Texas’ manner of execution amounts to cruel and unusual punishment;

16. The cumulative effect of the alleged errors denied McGowen’s constitutional rights.

Respondent seeks summary judgment on all McGowen’s grounds for relief. Respondent argues that a procedural bar prevents federal consideration of several issues. Also, Respondent asserts that this Court cannot grant relief on any issues that McGowen did not exhaust in state court. Respondent argues that only claims one, four, five and six are fully available for federal review.

McGowen has spent over two decades on death row. In those years, McGowen’s Penry claim, which courts previously denied routinely, has become one that courts grant routinely. As discussed at length below, developments in the way in which federal courts have considered Texas’ manner of placing mitigating evidence before the jury require this Court to grant relief on McGowen’s Penry claim. Accordingly, the Court need not address the additional claims that relate to the punishment phase. Specifically, only claims one, ten, eleven, twelve, and arguably sixteen relate to the guilt/innocence phase of McGowen’s trial proceedings.

LEGAL STANDARDS

Habeas corpus review provides the federal courts with a limited examination of state criminal judgments. While “the Framers considered the writ a vital instrument for the protection of individual liberty,” Boumediene v. Bush, 553 U.S. 723, 128 S.Ct. 2229, 2246, 171 L.Ed.2d 41 (2008), federal courts traditionally rely on principles of finality, comity, and federalism to narrow the scope of federal habeas review. See Brecht v. Abrahamson, 507 U.S. 619, 635, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993). Recognizing “the profound societal costs that attend the exercise of habeas jurisdiction,” Smith v. Murray, 477 U.S. 527, 539, 106 S.Ct. 2661, 91 L.Ed.2d 434 (1986), “[t]he role of federal habeas proceedings, while important in assuring that constitutional rights are observed, is secondary and limited.” Barefoot v. Estelle, 463 U.S. 880, 887, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983). “The States possess primary authority for defining and enforcing the criminal law. In criminal trials they also hold the initial responsibility for vindicating constitutional rights. Federal intrusions into state criminal trials frustrate both the States’ sovereign power to punish offenders and their good-faith attempts to honor constitutional rights.” Engle v. Isaac, 456 U.S. 107, 128, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982); see also Calderon v. Thompson, 523 U.S. 538, 555-56, 118 S.Ct. 1489, 140 L.Ed.2d 728 (1998) (“Federal habeas review of state convictions frustrates both the States’ sovereign power to punish offenders and their good-faith attempts to honor constitutional rights.”) (quotation omitted); McCleskey v. Zant, 499 U.S. 467, 491, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991) (“Our federal system recognizes the independent power of a State to articulate societal norms through criminal law; but the power of a State to pass laws means little if the State cannot enforce them.”).

The Anti-Terrorism and Effective Death Penalty Act (“AEDPA”) honors the traditional bounds of federal habeas review. The AEDPA places primary importance on a State’s adjudicative process, thus limiting the issues a federal court can consider on habeas review and the circum-

stances that merit habeas relief. As a precursor to federal habeas review, an inmate must provide the state courts the first opportunity to consider his constitutional challenges. See 28 U.S.C. § 2254(b)(1). The AEDPA precludes federal review over unexhausted claims for any purpose other than to deny them merits. See 28 U.S.C. § 2254(b)(2). As a corollary to the exhaustion doctrine, federal practice general refuses to consider the merits of any claim that an inmate has failed to present in compliance with state procedural law. See Dretke v. Haley, 541 U.S. 386, 392, 124 S.Ct. 1847, 158 L.Ed.2d 659 (2004); Lambrix v. Singletary, 520 U.S. 518, 523, 117 S.Ct. 1517, 137 L.Ed.2d 771 (1997); Coleman v. Thompson, 501 U.S. 722, 729, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). If an inmate defaulted his claims when he attempted to exhaust them because he did not follow adequate and independent state procedural law, federal courts likewise cannot review the merits of his claims unless he meets demanding exceptions.

The same principles of comity, federalism, and finality that limit the scope of federal review also generously defer to a State’s resolution of factual and legal issues. Placing primary emphasis on the State’s consideration of constitutional issues, the AEDPA mandates a deferential review over those claims “adjudicated on the merits” in state court. 28 U.S.C. § 2254(d). Federal habeas relief on exhausted and adjudicated claims only becomes available when an inmate shows that the state decision was contrary to, or an unreasonable application of, federal law. See 28 U.S.C. § 2254(d)(1), (2). In practice, this standard gives wide latitude to state courts. Here, the state courts considered some of McGowen’s claims, either directly or in the alternative after imposing a procedural bar. To be “contrary to” federal precedent, McGowen must show: (1) the state court’s conclusion is “opposite to that reached by [the Supreme Court] on a question of law” or (2) “the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 413, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); see also Bell v. Cone, 535 U.S. 685, 698, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002); Early v. Packer, 537 U.S. 3, 7-8, 123 S.Ct. 362, 154 L.Ed.2d 263 (2002). To show that the state court unreasonably applied federal law, McGowen must prove it “identified] the correct governing legal rule from [the Supreme Court] cases but unreasonably applied] it to the particular facts of the particular state prisoner’s case” or “if the state court either unreasonably extended] a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refused] to extend that principle to a new context where it should apply.” Williams, 529 U.S. at 407, 120 S.Ct. 1495.

The AEDPA also provides substantial deference to a state court’s resolution of factual issues. The Texas Court of Criminal Appeals issued a comprehensive opinion on direct appeal. On habeas review, the state district court made detailed and comprehensive fact findings after considering the record and the evidence presented by the parties (though not all survived appellate review). Under 28 U.S.C. § 2254(d)(2) “a decision adjudicated on the merits in a state court and based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state-court proceeding!.]” Miller-El v. Cockrell, 537 U.S. 322, 340, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). A federal habeas court must presume the underlying factual determinations of the state court to be correct, unless the petitioner “rebut[s] the presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1); see also Miller-El, 537 U.S. at 341, 123 S.Ct. 1029.

As a procedural matter, the unique nature of habeas cases modifies general civil practice. This action now comes before the court on Respondent’s motion for summary judgment. Summary judgment is proper where the record shows “no genuine issues as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56. “As a general principle, Rule 56 of the Federal Rules of Civil Procedure, relating to summary judgment, applies with equal force in the context of habeas corpus cases.” Clark v. Johnson, 202 F.3d 760, 764 (5th Cir.2000). In ordinary civil cases, a district court considering a motion for summary judgment must construe disputed facts in a light most favorable to the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (“The evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor”). However, a court must view a summary judgment motion through “the prism of the substantive evidentiary burden.” Id. at 254, 106 S.Ct. 2505. Congress, through the AEDPA, has constricted both the nature and availability of habeas review. The Rules Governing Section 2254 Cases in the United States District Courts, along with traditional habeas practice, also allow for the summary dismissal of habeas claims. This Court, therefore, applies general summary judgment standards only insofar as they do not conflict with the language and intent of the AEDPA or other habeas law. See Smith v. Cockrell, 311 F.3d 661, 668 (5th Cir.2002) (“[Rule 56] applies only to the extent that it does not conflict with the habeas rules.”), overruled on other grounds by Tennard v. Dretke, 542 U.S. 274, 124 S.Ct. 2562, 159 L.Ed.2d 384 (2004); Rule 11 of the Rules Governing Section 2254 Cases in the United States District Courts (“The Federal Rules of Civil Procedure, to the extent that they are not inconsistent with any statutory provisions or these rules, may be applied to a proceeding under these rules.”).

ANALYSIS

I. Punishment Phase Claims

Most of the claims in McGowen’s federal habeas petition relate to the punishment phase of his trial. Specifically, claims one through nine and thirteen through fifteen all relate to McGowen’s death sentence. As indicated below, the Court finds that federal law entitles McGowen to a new sentencing hearing.

McGowen argues that the jurisprudence flowing from Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989), proves that the jury lacked an effective vehicle to give effect to his mitigating evidence. McGowen’s claim invokes decades of jurisprudence involving Texas’ method of placing mitigating evidence before capital juries. In 1972, the Supreme Court in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), condemned death penalty statutes that gave a sentencer open-ended discretion. The Furman Court established that a state capital sentencing system must satisfy two requirements to be constitutionally acceptable: it must “rationally narrow the class of death-eligible defendants” and “permit a jury to render a reasoned, individualized sentencing determination based on a death-eligible defendant’s record, personal characteristics, and the circumstances of his crime.” Kansas v. Marsh, 548 U.S. 163, 174, 126 S.Ct. 2516, 165 L.Ed.2d 429 (2006).

The Texas Legislature’s renovation of its capital punishment scheme in the wake of Furman did not include a specific vehicle for the consideration of mitigating evidence. In Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976), the Supreme Court upheld the constitutionality of Texas’ capital sentencing statute. The Jurek Court found that the constitutionality of the Texas scheme “turns on whether the enumerated [special issue] questions allow consideration of particularized mitigating factors.” Id. at 272, 96 S.Ct. 2950. The Jurek Court recognized that, while the then-existent Texas capital sentencing statute did not directly address a defendant’s mitigating evidence, the Texas Court of Criminal Appeals interpreted the statute in a way that let a jury consider mitigating circumstances. See id. at 272-73, 96 S.Ct. 2950. By the time of McGowen’s trial in 1988 the Supreme Court had firmly held that a capital sentencing statute must give effect to a defendant’s mitigating evidence. See Lockett v. Ohio, 438 U.S. 586, 602, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978); Woodson v. North Carolina, 428 U.S. 280, 303-05, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976).

McGowen’s jury could only consider the defense’s mitigating evidence through the special issue questions, which in this case asked whether (1) he acted deliberately; (2) he would be a future societal threat; and (3) he acted unreasonably in response to provocation. Before turning to the way that federal courts have responded to Texas’ lack of explicit jury instructions on mitigating evidence, the Court will review the defense’s punishment phase evidence and argument in this case.

A. Punishment Phase Testimony

The prosecution presented a strong case for the death penalty. The prosecution called many witnesses to prove that McGowen would be a future threat. Testimony showed that McGowen had killed the victim deliberately and that he responded unreasonably to any provocation. The defense faced a herculean task in the punishment phase, but gave a lukewarm response. The defense called only two punishment witnesses: McGowen’s sisters Rhonda T. Edwards and Valerie McGowen. McGowen’s sisters provided only a superficial glimpse into his life.

From his sisters’ testimony, the jury understood that McGowen came from a poor neighborhood with an unstable family life and troubled background. Ms. Edwards testified that she and McGowen lived in the same house “[approximately half of [her] life” until he went to live with his father. Tr. Vol. 35 at 514. After that, McGowen moved in with his grandmother. At age sixteen he obtained his own apartment. When Ms. Edwards was twelve or thirteen she went to live with McGowen. Tr. Vol. 25 a 514-15. Many others lived in McGowen’s apartment, including his girlfriend, her two children, Norman Willis, and an uncle. Tr. Vol. 25 at 515.

McGowen was a positive figure in his sister’s life. She testified: “[h]e was a father-like type to me. He told me all the right things to do, the right things to say, you know. He showed me how to fill out job applications when I was young.” Tr. Vol. 25 at 516. Ms. Edwards testified that, if McGowen received a life sentence, she would help him: “When he gets out, I would like for him to come live with me in my home. I would do the same things that he’s always done for me.” Tr. Vol. 25 at 518.

On cross-examination, Ms. Edwards testified that her brother had been a vocational school while living with his grandmother before age sixteen, but he had dropped out. Tr. Vol. 25 at 520. The prosecution also hinted, however, that McGowen provided for his family members by stealing, set a poor example for his siblings, and did not respond to his grandmother’s efforts to teach him “to do right.” Tr. Yol. 25 at 521.

Valerie McGowen also testified, albeit only briefly. "When she lived with McGowen, he worked at a restaurant to provide for his girlfriend and others. Tr. Vol. 25 at 523. She explained: “He worked every day. He got up early and went to work every day.” Tr. Vol. 25 at 524. She said she would support McGowen if he received a life sentence. Tr. Vol. 25 at 524-25.

Contrary to her sister’s testimony, Valerie McGowen explained that her brother graduated from a vocational program. Tr. Vol. 25 at 526-27. She also explained that he is articulate and intelligent. Tr. Vol. 25 at 528.

Closing arguments drew connections between the testimony from McGowen’s sisters and the choices McGowen made. Of particular importance to these proceedings, trial counsel’s argument highlighted McGowen’s disadvantaged background, both as a means for garnering sympathy and to put his actions into context. Mr. Godwin emphasized:

I want you to listen to what I say. I don’t mean to be misunderstood. Obviously, Mr. McGowen is black. I don’t mean to suggest and I’m not suggesting that this case was racially motivated. There’s no evidence of that. I’m not suggesting that. I’m not suggesting that the State prosecuted out of racial motives, but is there any among you who can deny that growing up in Houston black, poor, uneducated, and from a broken home is a considerably different experience that what most of us are used to? Life is solving problems. Life is learning how to cope with problems and overcoming problems that confront us every day. Is there any among you who think that Roger Wayne McGowen had the same chance, the same ability, had the same intelligence to overcome problems confronting him that some of us did?

He’s sixteen or seventeen years old, and he’s got an uncle. He’s got a wife. He’s got a sister. He’s being followed by the likes of no-account Norman Willis. He’s trying to hold a family together, solve their problems, help them get them down the road of life, and he has to take care of himself. You need to consider that. You may reject it, but please consider it. God didn’t give all of us the same ability to solve our problems.

I’m not asking you to excuse any conduct. Don’t misunderstand me. What you have found him guilty of doing does not ask to be excused. It should not be excused, but I am asking you to fairly consider all the evidence and render a decision.

Tr. Vol. 25 at 556-58 (emphasis added). Mr. Godwin then asked the jury to “temper [the] verdict with mercy and bring out a life sentence.” Tr. Vol. 25 at 559.

Mr. Mock told the jury that McGowen would not be a future danger because the prosecution had not shown him to be a threat while incarcerated. Tr. Vol. 25 at 572. Then, he pleaded:

I would ask you to look at other things like his age.... You’ve got a guy who’s twenty-three years old now. He’s young. His career started at a very early age. He did it the wrong way. At sixteen after living with a series of relatives, a series of relatives, at sixteen years of age, he has his own home, his own apartment. He has no direction, but he’s got a fourteen-year-old sister to support, who was either pregnant at that time or had the baby living there with her. He had Norman Ray Willis. Norman Ray Willis had nowhere else to go. If you think Norman Ray Willis developed all these propensities for robberies, then think again. You heard about Norman Ray Willis. He said he went there because he had nowhere else to go, because every foster home and any other place where he had been had kicked him out. That was at the age of thirteen to fourteen. Talk about an incorrigible person, to be kicked out of everywhere you go before you’re fourteen years old. Everyone told him to get out.

Then you heard about some uncle who lived there off and on, an older man, but who took care of everything? Roger McGowen. His other sister testified that she lived with him, too. She said he tried to help her. He graduated from Job Corps. He was taking care of a wife or woman and also her two children. He is the only support.

Tr. Vol. 25 at 573-74. Mr. Mock asked the jury to consider the “totality of the circumstances” in assessing his punishment, emphasizing his youth: “Can you imagine looking at life in the penitentiary? My God, we haven’t even begun to live at forty, and he’s looking at life in the penitentiary at twenty-three years old.” Tr. Vol. 25 at 577.

The prosecution’s final summation responded to the defense’s arguments for leniency. The prosecutor stated:

You’ve got the responsibility on your shoulders. You’re not social workers. Since when has it been an excuse because you’re poor or black or whatever you want to blame it on, since when does that or society take the blame. “He never had a chance. That’s why he went and robbed somebody and killed somebody.”

That’s a cop-out. I’m a minority. Some of you are minorities. We all make our own decisions. We all learned that if we do something wrong. We’ve got to pay the price.... Did Roger McGowen worry about those things? He got up in the morning and went out and robbed somebody, steals, kills. No problem.

Tr. Vol. 25 at 583-84. The prosecutor then characterized McGowen as someone who did not learn from his background, experience, or bad choices, but one who persisted in wrongdoing.

B. The Legal Landscape

The Court of Criminal Appeals addressed the ability of McGowen’s jury to consider his mitigating evidence not long after the Supreme Court decided Penry. Recent federal cases have discussed Penry jurisprudence in great detail. See, e.g., Abdul-Kabir v. Quarterman, 550 U.S. 233, 127 S.Ct. 1654, 167 L.Ed.2d 585 (2007); Nelson v. Quarterman, 472 F.3d 287 (5th Cir.2006). This Court need not repeat the complete constitutional and legal history of the Penry line of cases. Nonetheless, a brief overview of the Penry landscape places McGowen’s state and federal proceedings into a broader context.

In 1989, the Supreme Court Penry v. Lynaugh, 492 U.S. 302, 327-28, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989) (“Penry /”), held that Texas’ then-applicable procedure did not always provide an effective vehicle for considering some mitigating evidence. The Supreme Court found that some elements of the Penry defendant’s mental retardation and child abuse evidence transcended the jury’s specific inquiry under the special issues. See id. at 328, 109 S.Ct. 2934 (quoting Woodson, 428 U.S. at 305, 96 S.Ct. 2978). Courts subsequently struggled with how to interpret the contours of Penry I. Nothing in that case signaled a wholesale rejection of Texas’ special issues. The Fifth Circuit and Texas courts, therefore, grappled with deciding “by what principle should the line between Penry I and non Penry I evidence be drawn?” Robertson v. Cockrell, 325 F.3d 243, 251 (5th Cir.2003). Eventually, the en banc Fifth Circuit in Graham v. Collins, 950 F.2d 1009 (1992), outlined the principles that it would later distill into a “constitutional-relevancy test,” under which it denied all Penry claims before 2002. See Robertson, 325 F.3d at 256. The Texas Court of Criminal Appeals applied a standard similar to the constitutional relevancy test in denying most Penry claims.

In McGowen’s case, the Court of Criminal Appeals on direct review refused to extend Penry beyond the exact type of evidence the Supreme Court considered in that case. See McGowen, No. 69,855, at 26. Specifically, the Court of Criminal Appeals found that McGowen’s good character evidence was not comparable to the child abuse and mental retardation present in Penry I.

The flow of years has brought changes in the law, showing that the Court of Criminal Appeals’ decision, while in accordance with the manner in which Texas and the Fifth Circuit had previously responded to Penry I, was contrary to, and an unreasonable application of, federal law. See 28 U.S.C. § 2254(d)(1). The Supreme Court began reviewing Texas’ response to Penry I in the case that resulted from Johnny Paul Penr/s retrial. Penry v. Johnson, 532 U.S. 782, 121 S.Ct. 1910, 150 L.Ed.2d 9 (2001) (“Penry H”). Supreme Court cases in the wake of Penry II signaled deep concerns about Texas’ manner of placing mitigating evidence before juries. See Smith v. Texas, 543 U.S. 37, 43-45, 125 S.Ct. 400, 160 L.Ed.2d 303 (2004); Tennard v. Dretke, 542 U.S. 274, 283,124 S.Ct. 2562, 159 L.Ed.2d 384 (2004). Nevertheless, the Fifth Circuit issued conflicting opinions concerning the state of Penry jurisprudence, but generally denied habeas relief on those claims. Compare Robertson v. Cockrell, 279 F.3d 1062 (5th Cir.2002), with Tennard v. Cockrell, 284 F.3d 591 (5th Cir.2002), Dinkins v. Cockrell, 34 Fed.Appx. 963 (5th Cir.2002) (unpublished), and Patrick v. Cockrell, 34 Fed.Appx. 150 (5th Cir.2002) (unpublished).

In 2004, the Supreme Court rejected the Fifth Circuit’s constitutional relevancy test as a “restrictive gloss on Penry I.” Tennard, 542 U.S. at 283, 124 S.Ct. 2562. The Tennard court found that the Fifth Circuit’s precedent “ha[d] no foundation in the decisions of [the Supreme] Court.” Id. at 284, 124 S.Ct. 2562. The Tennard court instead endorsed a two-part inquiry into whether a jury could adequately consider mitigating evidence. First, a court must decide whether the defense presented “relevant” mitigating evidence, a much lower threshold determination than the “constitutionally relevant test” hatched by the Fifth Circuit. Id. at 284, 124 S.Ct. 2562. Second, the Supreme Court reiterated that the ultimate inquiry in a Penry case was whether the defendant’s evidence had “mitigating dimension beyond” the special issue questions. Tennard, 542 U.S. at 288, 124 S.Ct. 2562; see also Smith, 543 U.S. at 43-45, 125 S.Ct. 400 (reaching the same result in a case on certiorari review from the Texas Court of Criminal Appeals).

The Fifth Circuit gave a mixed response to Tennard, repeatedly distinguishing petitioners’ evidence from that presented in Penry and Tennard. See, e.g., Brewer v. Dretke, 442 F.3d 273 (5th Cir.2006); Summers v. Dretke, 431 F.3d 861 (5th Cir.2005); Cole (Abdul-Kabir) v. Dretke, 418 F.3d 494 (5th Cir.2005); Coble v. Dretke, 417 F.3d 508 (5th Cir.2005).

Finally, in Abdul-Kabir v. Quarterman, 550 U.S. 233, 127 S.Ct. 1654, 167 L.Ed.2d 585 (2007), and Brewer v. Quarterman, 550 U.S. 286, 127 S.Ct. 1706, 167 L.Ed.2d 622 (2007), the Supreme Court reaffirmed that “sentencing juries must be able to give meaningful consideration and effect to all mitigating evidence that might provide a basis for refusing to impose the death penalty on a particular individual, notwithstanding the severity of his crime or his potential to commit similar offenses in the future.” Abdul-Kabir, 550 U.S. at 246, 127 S.Ct. 1654 (emphasis added); see also Brewer, 550 U.S. at 294-95, 127 S.Ct. 1706. “[Wjhen the defendant’s evidence may have meaningful relevance to the defendant’s moral culpability ‘beyond the scope of the special issues,’ ” a mitigation instruction is required. Abdul-Kabir, 550 U.S. at 254 n. 14, 127 S.Ct. 1654. Simply, “the jury must be allowed not only to consider such evidence, or to have such evidence before it, but respond to it in a reasoned, moral manner and to weigh such evidence in its calculus of deciding whether a defendant is truly deserving of death.” Brewer, 550 U.S. at 296, 127 S.Ct. 1706.

Since the Abdul-Kabir and Brewer decisions, the Fifth Circuit has described the evolved standard coming from Penry jurisprudence as follows: “when deciding whether to sentence a defendant to death, jurors must be able to give a reasoned moral response to evidence that has meaningful mitigating relevance beyond its ability to negate the special issues, particularly evidence which speaks to a defendant’s moral culpability.” Coble v. Quarterman, 496 F.3d 430, 447 n. 15 (5th Cir.2007). The Fifth Circuit has subsequently applied the Abdub-Kabir/Brewer reading of Penry jurisprudence, granting relief in all but one case in which the petitioner raised a procedurally adequate Penry claim. See Mines v. Quarterman, 267 Fed.Appx. 356, 362 (5th Cir.2008); Chambers v. Quarterman, 260 Fed.Appx. 706, 707 (5th Cir.2007); Garcia v. Quarterman, 257 Fed.Appx. 717, 723 (5th Cir.2007); Coble v. Quarterman, 496 F.3d 430, 433 (5th Cir.2007); Nelson, 472 F.3d at 316; but see Smith v. Quarterman, 515 F.3d 392, 414 (5th Cir.2008). Against that background, the Court will consider McGowen’s claim that his jury could not give full effect to the mitigating evidence.

C. The Jury’s Ability to Give a Reasoned Moral Response to McGowen’s Evidence

The Court of Criminal Appeals considered McGowen’s claim in a much different legal light than now shines on Penry claims. The Court of Criminal Appeals, in fact, considers the jurisprudence that has developed since it considered McGowen’s initial Penry claim to constitute “new law.” Ex parte Hood, 304 S.W.3d 397 (Tex.Crim. App.2010). Respondent seemingly concedes that McGowen meets the low threshold of relevance for Penry claims. Respondent then makes a tepid effort to distinguish McGowen’s evidence from those in which the Supreme Court, Fifth Circuit, and other courts have granted relief under the modern understanding of Penry jurisprudence.

Respondent provides three arguments to distinguish this case from the Supreme Court’s modern Penry cases. First, Respondent argues that the Court must deny McGowen’s Penry claim because his evidence is categorically different from that present in Pem-y. Respondent contrasts McGowen’s mitigating evidence — which Respondent characterizes as that “he was a young, poor sociopath who chose to lead a life of crime” — with Penry’s evidence of mental illness and childhood abuse. (Instrument No. 33 at 32). The Court of Criminal Appeals likewise viewed his evidence narrowly, though it considered his argument to be only one of good character, showing that the “was the sole means of support” and “like his father-figure” to his sisters and the others living in his apartment. McGowen v. State, No. 69,855, at 26 (Tex.Crim.App. Dec. 2, 1992).

These two views do not capture the full scope of the defense’s punishment phase case. True, the defense presented a superficial case for mitigation. Nonetheless, the Supreme Court has not “suggested that the question whether mitigating evidence could have been adequately considered by the jury is a matter purely of quantity, degree, or immutability.” Brewer, 550 U.S. at 294, 127 S.Ct. 1706. The focus is on whether the evidence “diminish[ed] a defendant’s moral culpability for a crime.” Id. at 294, 127 S.Ct. 1706.

However brief the defense’s presentation of evidence was, Respondent and the Court of Criminal Appeals have construed the defense’s case for mitigation too narrowly. The mitigating thrust of McGowen’s evidence was not that he was a “young, poor sociopath” with a “good character.” The defense’s case for mitigation, particularly as clarified through trial counsel’s closing argument, was threefold: (1) youthful McGowen came from a disadvantaged background; (2) his background limited his ability to solve problems in his life; and (3) he nonetheless had redeeming qualities, such as assuming responsibility for his two younger sisters. With the possible exception of good character evidence, recent cases do not categorically foreclose Penry relief on McGowen’s mitigation evidence. For example, the Supreme Court in Brewer criticized the argument that “evidence of a troubled childhood may ... fall sufficiently within the ambit of the special issues.” Brewer, 550 U.S. at 296, 127 S.Ct. 1706 (quotation omitted). The distinction propounded by the Court of Criminal Appeals and Respondent, therefore, must give way to a review of whether McGowen’s evidence “ha[d] mitigating relevance to the special issues” and “the extent to which it ... diminish[ed] his moral culpability for the crime.” Brewer, 550 U.S. at 294, 127 S.Ct. 1706. The key question is whether that evidence “has meaningful mitigating relevance beyond its ability to negate the special issues, particularly evidence which speaks to a defendant’s moral culpability.” Coble, 496 F.3d at 447 n. 15.

As the second argument, Respondent distinguishes Abdul-Kabir and Brewer because, unlike in those cases, no “overly aggressive prosecutorial arguments” limited the jury’s discretion in answering the special issues. (Instrument No. 33 at 33). In Abdul-Kabir, the prosecution reminded the jurors of their promise during voir dire to answer the special issues on the facts alone, not on mitigating factors. Abdul-Kabir, 550 U.S. at 241-42, 127 S.Ct. 1654. In Brewer, the prosecution de-emphasized the defense’s mitigating evidence and told the jurors that they could not say whether the defendant “lives or dies,” but only answer the special issues. Brewer, 550 U.S. at 291, 127 S.Ct. 1706.

The prosecutor in this case made some statements similar to those in Brewer, such as limiting the jury’s awareness that their decision would result in life or death. The prosecution’s argument also limited the jury’s consideration of the deliberateness special issue to two factors: (1) had McGowen lived a life that predisposed him to kill and (2) did he choose to pull the trigger? The prosecution, in essence, narrowed the jury’s evaluation to the decisions McGowen made, without regard for the reasons he made decisions in that manner. However, the tone and tenor of the discussion did not attempt to short-circuit the mitigating defense completely. While the prosecutor told the jury that the defense’s arguments had no merit, he did not tell them to disregard mitigation completely. Nonetheless, the question in Abduh-Kabir and Brewer did not turn on the prosecutor’s language, but on whether the special issues allowed the jury to give meaningful effect to the defense’s evidence. Any prosecutorial restraint in not encouraging the jury to ignore mitigation only matters if the jury could-otherwise give a reasoned moral response through the statutory special issues.

Respondent’s third argument is that the jury could make a moral response to the evidence because McGowen only sought to “humanize himself before the jury,” not “diminish his moral culpability.” (Instrument No. 33 at 34-35). As evinced by counsel’s summation, the mitigation case did not just go to sympathy; it advocated that McGowen’s background explained the choices he made. Trial counsel portrayed his client as less morally culpable because the formative circumstances of his life made him less morally capable. AbdulKabir and Brewer held that a jury must be able to respond to that type of evidence.

Respondent in passing cites Smith v. Quarterman, 515 F.3d 392 (5th Cir.2008), the only Fifth Circuit case to deny a Penry claim since the issue last came before the Supreme Court. Respondent relies on Smith for the proposition that “the Fifth Circuit Court has held that the resolution of a Penry claim requires an examination of the extent to which a petitioner’s evidence diminishes his culpability for the crime.” (Instrument No. 33 at 31). True, the Fifth Circuit in Smith held that a valid Penry claim must link a defendant’s mitigating evidence and his moral culpability. In essence, the Smith Court denied habeas relief because the petitioner drew no connection between his troubled childhood and his character:

The emphasis of the Penry cases is on childhood adversity which has a formative, adverse effect on the defendant’s character, thereby potentially reducing his moral culpability.... None of Smith’s witnesses claim any such effect; indeed, to the limited extent that they mentioned his character, Smith’s mother and sister described him in positive terms, as calm and respectful, and, to their knowledge, non-violent and not a drug-user. This is a case where the petitioner’s evidence “has only a tenuous connection ... to the [petitioner’s] moral culpability.”

Smith, 515 F.3d at 414 (quoting Abdul-Kabir, 550 U.S. at 253 n. 14, 127 S.Ct. 1654). The Smith Court, however, limited its holding to those cases in which the defense does not link a defendant’s deprived background to his depraved choices:

We emphasize that our holding here is a narrow one, based on our detailed review of the record which contains no evidence of a connection between the poverty and crime of the Fifth Ward and Smith’s character. Unless we are to assume that every individual who grew up in poverty and in a crime-infested neighborhood has, by that fact alone, potentially reduced moral culpability, requiring a Penry instruction, we cannot conclude that the TCCA erred when it decided that Smith’s sentence passed muster under Penry.

Id. at 414.

Unlike in Smith, however, McGowen’s trial counsel drew a connection between his disadvantaged background and his character. Trial counsel did not just hope that the jury would show McGowen mercy because of his troubled childhood and background; trial counsel’s argument connected his poor life choices to his poor background. Specifically, counsel begged:

[I]s there any among you who can deny that growing up in Houston black, poor, uneducated, and from a broken home is a considerably different experience that what most of us are used to? Life is solving problems. Life is learning how to cope with problems and overcoming problems that confront us every day. Is there any among you who think that Roger Wayne McGowen had the same chance, the same ability, had the -same intelligence to overcome problems confronting him that some of us did?

Tr. Vol. 35 at 557. While not as articulately as possible, trial counsel linked McGowen’s background to his tendency to solve problems by resorting to crime and violence. In contrast to Smith, trial counsel drew a connection between what McGowen had experienced and what he had become.

Respondent’s arguments do not show that the jury could adequately consider MeGowen’s moral culpability. The special issues did not allow the jury “to respond to [McGowen’s evidence] in a reasoned, moral manner and to weigh such evidence in its calculus of deciding whether a defendant is truly deserving of death” without additional instruction. Brewer, 550 U.S. at 296, 127 S.Ct. 1706. While McGowen’s “mitigating evidence may not have been as persuasive as Penry’s, it was relevant to the question of [his] moral culpability ... [because it] did not rebut either deliberateness or future dangerousness but was intended to provide the jury with an entirely different reason for not imposing a death sentence.” Abdul-Kabir, 550 U.S. at 259, 127 S.Ct. 1654; see also Graham, 506 U.S., at 475, 113 S.Ct. 892 (acknowledging that a “constitutional defect” has occurred not only when a jury is “precluded from even considering certain types of mitigating evidence,” but also when “the defendant’s evidence [i]s placed before the sentencer but the sentencer ha[s] no reliable means of giving mitigating effect to that evidence”).

Simply, this is a case where “a properly instructed jury could have concluded that [McGowen] was less morally culpable for his crime because of his disadvantaged upbringing and would have had no means, under the deliberateness and future dangerousness instructions, of giving the evidence such effect.” Chambers, 260 Fed.Appx. at 707. On the one hand, the future dangerousness allowed the jury to conclude that his disadvantaged background, troubled childhood, and immature choices made him more likely to engage in future violence. Nonetheless, the jury also could have reasoned that those factors made him less morally culpable and, thus, less deserving of a death sentence. The future dangerousness issue, however, would not have allowed the jury to reach that conclusion. See Nelson, 472 F.3d at 312 (“If the jury concluded that Nelson was likely to be dangerous in the future based on his mental disorder and abusive childhood, but also concluded that this evidence rendered him less morally culpable, it had no way to give effect to the mitigating aspect of that evidence through the two special issues.”).

The provocation and deliberateness issues forced the jury to respond to McGowen’s bad choices without allowing them to review why he made bad choices. Thus, the special issues provided no vehicle for the jury to consider adequately the major mitigating thrust of McGowen’s punishment phase case. McGowen has shown constitutional error in his jury instructions.

D. Harmlessness of the Constitutional Error

Respondent argues that, even if the jury could not consider McGowen’s mitigation evidence, any resultant error would be harmless. On the facts of this case, Respondent makes a compelling argument. The prosecution called witness after witness in the punishment phase to show that McGowen was extremely violent, deliberate, and uncaring. McGowen threw himself in a life of lawlessness and violence, showing no remorse or hope for rehabilitation. The mitigating evidence presented by the defense was meager, at best, in comparison. Even assuming that jurors could fully appreciate his mitigating evidence, the defense gave the jury little reason not to answer the special issues in a manner requiring a death sentence. McGowen almost certainly would have received a death sentence even if the trial court had anticipated the Penry decision, and all the subsequent jurisprudence, and correctly instructed the jury.

But the law as it currently stands does not allow for a harmless-error review of Penry claims. “[T]he question whether some types of Penry error might be subject to harmless error review has not been squarely decided by and remains unresolved by the United States Supreme Court.” Garcia, 257 Fed.Appx. at 724; see also Smith v. Texas, 550 U.S. 297, 316, 127 S.Ct. 1686, 167 L.Ed.2d 632 (2007) (Souter, J., concurring) (“In some later case, we may be required to consider whether harmless error review is ever appropriate in a case with error as described in Penry[.] We do not and need not address that question here.”). The Fifth Circuit, however, has noted that “the Supreme Court has never applied a harmless-error analysis to a Penry claim or given any indication that harmless error might apply in its long line of post-Furman cases addressing the jury’s ability to give full effect to a capital defendant’s mitigating evidence.” Nelson, 472 F.3d at 314. The Fifth Circuit has held that “it would be wholly inappropriate for an appellate court, in effect, to substitute its own moral judgment for the jury’s in these cases.” Id. at 315. Given that reasoning, Fifth Circuit precedent “forecloses any argument that a Penry error can be subject to harmless error review.” Mines, 267 Fed.Appx. at 362 n. 3; see also Nelson, 472 F.3d at 314-15.

Respondent has not shown any legal authority that would allow this Court to distinguish or disregard the Fifth Circuit cases holding that Penry error cannot be harmless. This Court must follow Fifth Circuit law and assume that the Penry error affected the jury’s sentencing decision. Accordingly, more than two decades after the first trial, Texas must either hold a new punishment hearing or commute McGowen’s sentence to life imprisonment.

E. Conclusion of Punishment Phase Claims

Habeas relief on McGowen’s Penry claim renders moot the other claims that attack his punishment phase. In the interests of judicial economy, the Court will not address their merits. The Court, therefore, will only adjudicate the claims that challenge his capital conviction.

II. Procedural Adequacy of McGowen’s Remaining Claims

McGowen raises four claims that relate to the trial of his guilt. Specifically, the following claims ask the Court to review McGowen’s conviction: (1) trial counsel provided ineffective assistance by not investigating McGowen’s innocence (claim ten); (2) McGowen is actually innocent (claim eleven); and (3) the State failed to turn over Brady evidence (claim twelve). McGowen also raises a claim of cumulative error (claim sixteen), which is dependent on finding error in his other claims.

McGowen has not placed any of those remaining claims before the Court in a procedurally adequate manner. McGowen presented part of claim ten in his untimely amended habeas application, though he also amplified the factual basis for that claim in his successive habeas application. The Court of Criminal Appeals found that McGowen abused the habeas writ by bringing claims eleven and twelve in a successive habeas proceeding. McGowen has never presented his sixteenth claim to the state courts. Respondent argues that this Court cannot reach the merits of those claims.

The exhaustion and procedural default doctrines, both of which embody federal acquiescence to principles of comity and federalism, restrict consideration of habeas claims. Federal courts have long required inmates to give state courts the first chance to rectify constitutional violations. See Ex parte Royall, 117 U.S. 241, 251-52, 6 S.Ct. 734, 29 L.Ed. 868 (1886). To avoid the “ ‘unseemliness]’ of a federal district court’s overturning a state court conviction witho