Full opinion text
MEMORANDUM OPINION AND ORDER PRADO, District Judge. Petitioner George Cordova filed this action pursuant to Title 28 U.S.C. Section 2254 seeking federal habeas corpus review of his state conviction for capital murder and sentence of death. As grounds for relief, petitioner argues in his first amended petition that his trial counsel rendered ineffective assistance at both the guilt-innocence and punishment phases of petitioner’s state capital murder trial, the state trial court erred in its jury instructions at both phases of trial, petitioner’s death sentence violates the law of proportionality, the prosecution withheld exculpatory evidence, the evidence was legally insufficient to support the jury’s verdict on the first special sentencing issue, and the cumulative effect of the foregoing alleged errors warrants federal habeas corpus relief. Because petitioner filed his federal habeas corpus petition prior to the -effective date of the Antiterrorism and Effective Death Penalty Act of 1996 [“AEDPA”], this Court has been required to conduct a de novo review of each of petitioner’s claims for relief herein. For the reasons set forth at length hereinafter, this Court finds no merit to any of the petitioner’s claims for relief and, therefore, denies petitioner’s federal habeas corpus petition, and vacates the stay of execution issued in this cause on October 23,1995. I. Statement of the Case A Factual Background During the early morning hours of August 4, 1979, petitioner George Cordova, Manuel Villanueva, and two other persons fatally assaulted and stabbed Jose M. “Joey” Hernandez, dragged Cynthia West from Hernandez’s vehicle, sexually assaulted her, robbed both West and the body of Hernandez of jewelry and other items, and fled the scene with Hernandez’s vehicle, which was later found abandoned. A Bexar County grand jury indicted petitioner in 1980 on a charge of capital murder, to wit, having fatally stabbed Hernandez while committing and attempting to commit a robbery of Hernandez. Petitioner was tried in 1982, and a Bexar County jury convicted and sentenced petitioner to death. Petitioner appealed but the Texas Court of Criminal Appeals affirmed petitioner’s 1982 conviction and sentence on September 25, 1985. The United States Supreme Court denied petitioner’s petition for writ of certiorari on May 5, 1986. After petitioner unsuccessfully sought state habeas corpus relief, he filed a federal habeas petition which this Court denied. Petitioner appealed this Court’s denial of his federal habeas corpus petition and the Fifth Circuit reversed petitioner’s 1982 conviction on February 17, 1988. The United States Supreme Court denied the State’s certiorari petition on June 13,1988. On February 1, 1989, a Bexar County grand jury re-indicted petitioner in cause no. 89-CR-557 on a single Count of capital murder which contained three separate paragraphs alleging that the petitioner had murdered Jose M. Hernandez while in the course of committing and attempting to commit the predicate offenses of (1) robbing Hernandez, (2) robbing Cynthia West, and (3) engaging in the aggravated'sexual assault of West. On June 6, 1989, the jury returned a verdict of guilty in petitioner’s second capital murder trial. On June 9, 1989, the same jury answered the two Texas special sentencing issues affirmatively and the state trial court imposed a sentence of death by lethal injection. Petitioner appealed but, in an unpublished opinion issued April 27,1994, the Texas Court of Criminal Appeals affirmed petitioner’s 1989 conviction and death •sentence. The United States Supreme Court denied certiorari on November 28, 1994. On November 29, 1994, petitioner filed his original state habeas corpus application, asserting some eight claims for relief. On February 15, 1995, petitioner filed his first amended state habeas corpus application in which he asserted the same grounds for relief he had urged originally, and added two new claims of error regarding the state trial court’s guilt-innocence phase jury instructions. On July 3, 1995, petitioner filed his second amended state habeas corpus application and asserted therein three additional claims for a total of thirteen claims for relief. The state trial court held an evidentiary hearing on petitioner’s state habeas claims on July 11 and 20, 1995, during which that court heard testimony from several members of petitioner’s family regarding petitioner’s deprived and abused childhood, heard extensive testimony from both of petitioner’s trial counsel regarding their investigations into the case against petitioner and their strategic decision-making before and during petitioner’s 1989 trial, and heard testimony from Dr. John C. Sparks and received extensive documentary evidence regarding the mental and intellectual capacity of Manuel Villanueva. In an Order issued August 22,1995, the state trial court concluded that there was no merit to any of the claims contained in petitioner’s second amended state habeas corpus application and recommended that state habeas relief be denied. On October 18, 1995, the Texas Court of Criminal Appeals denied petitioner’s state habeas corpus application without written order. B. Procedural History On October 23, 1995, petitioner filed his original petition for federal habeas corpus relief in this Court, together with separate motions requesting appointment of counsel, a stay of his then-impending execution, and leave to file an amended petition for federal habeas relief. In an Order issued that same date, this Court granted petitioner’s motion for stay of execution, appointed counsel to represent petitioner herein, and granted petitioner leave to file an amended federal habeas corpus petition. On February 20, 1996, petitioner filed his first amended federal habeas corpus petition and asserted therein thirteen claims for relief similar but not identical to those he had included in his second amended state habeas corpus application discussed above. On April 19, 1996, respondent filed his answer and motion for summary judgment in which he argued, among other things, that (1) nothing in the federal Constitution mandated that petitioner’s jury be given the opportunity to consider the life sentence received by Manuel Villanueva as a mitigating factor which warranted a life sentence for petitioner, (2) the jury instructions at the punishment phase of petitioner’s 1989 trial did not foreclose the jury from giving adequate consideration to petitioner’s legitimate mitigating evidence, (3) several of petitioner’s complaints of alleged errors in the jury instructions raised new rules of law foreclosed by the non-retroactivity doctrine of Teague, (4) there was more than ample evidence introduced during the petitioner’s' 1989 trial to support the jury’s verdict at the punishment phase of that trial, and (5) petitioner’s trial counsel did not render ineffective assistance. Subsequently^ both parties filed supplemental pleadings and briefs addressing the applicability to this cause of the Antiterrorism and Effective Death Penalty Act of 1996 [“AEDPA”]. II. Inapplicability of the AEDPA On April 24, 1996, the President signed into law the AEDPA, which radically altered the standard of review by this Court in federal habeas corpus proceedings filed by state prisoners pursuant to Title 28 U.S.C. Section 2254. In the months thereafter, the Fifth Circuit held that the new standard of review provisions of the AEDPA governed federal court review of all federal habeas corpus petitions filed by state prisoners, including those petitions pending as of the effective date of that enactment. However, in Lindh v. Murphy, the Supreme Court held that the AEDPA does not apply to federal habeas corpus petitions filed prior to the effective date of that enactment. Thus the Fifth Circuit’s opinions holding the AED-PA applicable to federal habeas petitions filed prior to April 24, 1996 are no longer controlling authority for this Court. Because petitioner’s first amended habeas corpus petition in this cause was filed on February 20, 1996, prior to the effective date of the AED-PA, this Court must apply the pre-AEDPA standard of review to petitioner’s federal habeas claims herein. III. State Law Claims A state prisoner seeking federal court review of .his conviction pursuant to Title 28 U.S.C. Section 2254 must assert a violation of a federal constitutional right. Federal habeas corpus relief will not issue to correct errors of state constitutional, statutory, or procedural law, unless a federal issue is also presented. In the course of reviewing state criminal convictions in federal habeas corpus proceedings, a federal court does not sit as a super-state appellate court. The question before a federal habeas corpus court is not whether the state court correctly applied its own interpretation of state law; rather, the question is whether the petitioner’s federal constitutional rights were violated. When a federal district court reviews a state prisoner’s habeas petition pursuant to 28 U.S.C. § 2254 it must decide whether the petitioner is “in custody in violation of the Constitution or laws or treaties of the United States.” The court does not review a judgment, but the lawfulness of the petitioner’s custody simpliciter. Thus, the issue before this Court is not whether the Texas courts properly applied state-law principles during petitioner’s trial or when they affirmed petitioner’s conviction and sentence or denied petitioner’s state habeas corpus application; but whether petitioner’s federal constitutional rights have been violated in this case. IV. The Evidence at Trial Because so many of petitioner’s claims for federal habeas relief are highly fact-intensive and address either the impact of the state trial court’s jury instructions on the jury’s deliberations or the strategic decisions of petitioner’s trial counsel, a brief overview of the testimony and other evidence admitted during petitioner’s 1989 capital murder trial is necessary to place petitioner’s claims iii proper context. A. The Guilt-Innocence Phase of Trial Cynthia West testified that (1) on August 3, 1979, she was 19 years old, (2) the decedent Joey Hernandez picked her up in his car for a date that evening and they went to a drive-in movie and then drove various places before arriving in the well-lit parking lot at Espada Park in the early morning hours of August 4, 1979, (3). when they arrived, there was four, or five other vehicles also parked in the lot, (4) shortly after they parked, another vehicle drove up behind Joey’s car and parked, (5) the petitioner then knocked on Joey’s window and asked for some oil for his car, (6) when Joey told the petitioner that, he had none, the petitioner left and drove off, (7) shortly thereafter the other vehicles parked near Joey’s car left the parking lot, (8) a short time later, four persons, consisting of the petitioner, Manuel Villanueva, and two younger Hispanic males, walked up to the driver’s side of Joey’s ear and knocked on the window, (9) the windows of Joey’s vehicle were rolled down about a quarter of the way and both doors were locked, (10) the petitioner asked Joey to take him to get some gas, (11) Cynthia noticed a knife in Villanueva’s hand, (12) when Joey said that he was not going to take them anywhere because he had seen the knife in Villanueva’s hand, Villanueva replied “What knife? I don’t have a knife,” (13) Joey started to place his hand on the ignition but someone stuck a hand through the window • and struck Joey hard on the left side of his face, (14) the assailants then unlocked Joey’s door and the petitioner struck Joey on the left side and the head with a tire tool, (15) the petitioner then repeatedly jabbed Joey with the tire tool while Villanueva stabbed Joey’s head and left side with a pocket knife, (16) while the petitioner and Villanueva continued to assault Joey, the other two assailants came around to the passenger side of the car, unlocked the door, grabbed her arm, and pulled her to the rear of the car by the trunk, (17) when she got to the back of the car, the petitioner grabbed her left arm at the wrist and said to her ‘You better run, you. bitch,” (18) the petitioner then pulled her along at a brisk pace, (19) she was unable to match the petitioner’s speed because of her high heels and attempted to tell the petitioner that she was asthmatic and pregnant, (20) the petitioner directed her to take off her shoes, threatened her with the tire tool which he still held in his hand, and told her ‘You better run, you bitch or I’m going to do the same shit to you I just did to [Joey],” (21) she was frightened and did not fight back, (22) they ran across the street and the petitioner shoved her down, (23) the petitioner placed his hand first on her stomach and then over her mouth, stuck the tire tool into the ground just inches from her head, and told her that she had better not scream, (24) she saw another vehicle that looked like Joey’s vehicle drive over to where the petitioner’s vehicle was parked, (25) the petitioner then pulled her up and dragged her through a brushy area while her other assailants pushed her from behind, (26) she fell on her stomach and the petitioner said to her ‘You better turn over, you fucking bitch,” (27) when she refused to turn over, the petitioner physically turned her over, took off her watch, necklace, and cross, and then undressed her, (28) the petitioner then unripped his pants and, while others held her arms, the petitioner raped her, (29) at one point while he was raping her, the petitioner told her “you better start pumping,” (30) she did not comply with that directive, (31) once the petitioner got off her, Villanueva raped her, (32) she could smell the “terrible” odor of paint on Villanueva’s breath when he attempted to Mss her while he was raping her, (33) when Villanueva finished, a third assailant, the youngest one who had pulled her from Joey’s car, raped her while Villanueva stood by and watched, (34) the petitioner then spoke in Spanish to the other assailants, saying something to the effect “Come on, let’s go,” (35) the four assailants then got into the two cars and drove off, (36) she dressed and went back to the parking lot, where she found Joey laying face down in a pool of blood, (37) she yelled at him but he did not answer, (38) she flagged down a uniformed police officer who was riding a motorcycle, (39) an EMS unit arrived at the scene but did not take Joey’s body, (40) she described her assailants to the police officers who arrived shortly thereafter, (41) police officers brought three Hispanic youths to the crime scene but they were not her assailants, (42) a police officer took her to the hospital for a rape exam, (43) she gave a formal written statement to the police, (44) a few days later on August 7, 1979, she picked the petitioner and Manuel Villanueva out of separate lineups, (45) she recognized police photographs of herself taken shortly after the assault upon her which showed that she had suffered scratches to her neck, back, right hip, right side, right arm, and left arm, (46) she never agreed to have sexual relations with any of her assailants, (47) she never consented to give the petitioner any of the property he took from her, (48) at all times relevant to the sexual assault upon her and the assault upon Joey, she was in fear for her life, and (49) she got a clear look at the petitioner’s face both of the times that he approached Joey’s car and while the petitioner was dragging her through the bushes and raping her. Other testimony at the guilt-innocence phase of petitioner’s 1989 trial revealed that (1) the police officers who responded to the call regarding the murder and rape found Cynthia West to be obviously upset but coherent, (2) the night of the rape and murder, CyntMa took the police to the place where she had been raped and gave the police a very general description of her assailants, (3) based on that description, the police stopped a group of young HispaMc males and took them to a show up at the crime scene but CyntMa was certam that none of that group were among her assailants, (4) police found the knob from one of the door locks on Joey’s car lymg near Joey’s body, (5) the police also recovered a beer can contaming spray enamel paint near Joey’s body and a tire tool near the area where Cynthia West had been raped, (6) on August 4,1979, the police responded to a call about an abandoned vehicle located just a block and a half from Villanueva’s residence and a short distance from the residence of the petitioner’s family, (7) the abandoned vehicle was Joey’s, bore traces of blood and the distinctive odor of spray paint, and was missmg its hub caps, (8) Villanueva was a known abuser of spray paint, (9) police later recovered Cynthia and Joey’s watches from members of Villanueva’s family, (10) police recovered from members of Villanueva’s family two cases of eight-track cassette tapes that had been in Joey’s car prior his murder (11) police recovered Joey’s wallet from one of Villanueva’s neighbors who testified that Villanueva had given it to him and that he had seen Villanueva with the wallet and eight-track cassette boxes the date of the murder, (12) when the police finally found Villanueva at home at his residence, Villanueva exited the residence, dropped a pocket knife, and made no effort to pick up the knife, (13) Villanueva’s mother picked up the knife and gave it to police when they requested it, (14) the knife in question could have caused the fatal wound to Joey Hernandez, (15) efforts to match the finger prints taken from Joey’s vehicle proved fruitless when none of the 36 prints lifted from the vehicle proved to be sufficiently legible for that purpose, and (16) the blood samples taken from Joey’s vehicle, the blood on Villanueva’s knife, and the semen samples taken during Cynthia West’s rape exam each proved to be of insufficient quantity for purposes of typing and matching. The medical examiner who performed the autopsy of Joey Hernandez testified that (1) external examination of Joey’s body revealed that Joey had suffered multiple lacerations to the head and multiple stab wounds, (2) Joey’s lacerations were located below the left eye brow, on the left cheek bone below the eye, on the left middle jaw, and across the bridge of the nose, (3) the latter laceration involved a■ fracture to both the bone and cartilage tissue of the nose, (4) Joey’s stab wounds included wounds to the back of the head behind the left ear, the muscles of the neck where they insert into the clavicle, the iliac crest on the left hip bone, and behind the left knee, (5) Joey also sustained a superficial bruise to the right cheek bone, (6) internal examination revealed that one of the stab wounds penetrated into Joey’s trachea and another had cut three quarters of the way through Joey’s spinal cord between the first and second cervical vertebrae, (7) the spinal cord injury was very similar to the type of injury inflicted at the end of a bull fight and had caused almost instantaneous death, (8) either of the blades on the pocket knife which Villanueva had dropped when confronted by police could have caused the penetrating stab wound that all but severed Joey’s spinal cord, (9) the pain caused by the blow which broke and lacerated Joey’s nose would have rendered him incapacitated even if it did not render him unconscious, (10) the lacerations to Joey’s body were consistent with the type of injuries caused by blows from a blunt instrument like a tire tool, (11) Joey was not intoxicated at the time of his death, (12) the precise sequence of the blows and stab wounds to Joey’s body could not be ascertained, (13) the injuries to Joey’s face could have been caused by his face and head being forcibly shoved against the steering wheel of a motor vehicle, and (14) while there were no bruises or fractures to Joey’s ribs, side, or thighs noted, he did suffer a small laceration to his left shoulder. The evidence at the guilt-innocence phase-of petitioner’s 1989 trial also established that (1) the petitioner was booked into the Bexar County Jail on August 6,1979 on a charge of capital murder and (2) the petitioner escaped from the fourth floor of the Bexar County Jail on or about September 27, 1980 by climbing down a rope made from sheets and mattress covers. The defense offered the testimony of petitioner’s three sisters, i.e., Aurelia Gomez, Maria Alma Herrera, and Nancy Cordova, that the petitioner had been baby-sitting for one of his sisters on the night in question. Two of the petitioner’s sisters admitted during cross-examination, however, that they had never previously testified regarding this new alibi evidence and the other sister admitted that, while she had testified at petitioner’s first trial, she had not presented all aspects of her alibi testimony at petitioner’s first trial. On June 6, 1989, after hearing closing arguments from both sides, the petitioner’s jury retired to deliberate petitioner’s guilt and returned its guilty verdict later that same date. B. Punishment Phase of Trial The evidence admitted during the punishment phase of petitioner’s 1989 capital murder trial included testimony regarding numerous instances of illegal and violent conduct by the petitioner, both inside and out of prison. More specifically, (1) two ju~ venile probation officers and three police officers each testified that petitioner’s reputation in the community for being peaceful and law-abiding was bad, (2) another police officer testified that, on May 25, 1979, he arrested the petitioner for -unlawfully carrying a loaded handgun onto a licensed premises and the gun was later determined to have been stolen from Florida, (3) a court bailiff testified that, on January 20, 1982, while the petitioner was in custody, he discovered a handcuff key in the petitioner’s pants pocket during a routine search of petitioner’s person at the Bexar County courthouse, (4) a Texas Department of Corrections [“TDC”] officer testified that, during a routine shakedown of cells on December 18, 1984, the petitioner took a five-to-six inch homemade knife out of his pocket and attempted to pass the knife to another inmate, (5) another TDC officer testified that, on November 13, 1985, he discovered eleven marijuana cigarettes during a shakedown of the petitioner’s cell and that the petitioner later threatened him, (6) another TDC officer testified that, on January 24, 1986, the petitioner had refused to comply with a routine strip search directive and had grabbed a belt and dared officers to search him until a lieutenant arrived on the scene, (7) another TDC officer testified that, on November-22, 1988, the petitioner climbed a fence separating recreational areas at a TDC facility and received a packet of papers that turned out to be illegal betting slips, and (8) another TDC officer testified that, on December 18, 1988, the petitioner spat directly in his face and demanded to see a ranking officer. The prosecution also introduced documents reflecting that the petitioner had been convicted (1) pursuant to a plea of nolo contendere in 1978 of the offense of “assault bodily injury,” (2) pursuant to a guilty plea in April, 1982 of the felony offense of escape, and (3) pursuant to a guilty plea in April, 1982 of the felony offense of “robbery — bodily injury.” The prosecution’s strongest evidence at the punishment phase of petitioner’s 1989 capital murder trial related to petitioner’s convictions in Florida for offenses committed after the petitioner’s escape from the Bexar County Jail, while the petitioner remained a fugitive from justice. A finger print examiner testified that the petitioner’s finger prints matched those on a Florida pen packet indicating that the petitioner had been convicted in that state on two counts of aggravated assault and two counts of sexual battery. A former deputy Sheriff from Florida testified that (1) when he and other law enforcement officials went to a labor camp to investigate a reported rape the evening before, the petitioner fled on foot and led them on a chase into a heavily wooded area, (2) they were forced to employ bloodhounds and helicopters to search for the petitioner, (3) when they finally apprehended the petitioner he pretended not to understand English, and (4) the petitioner later pleaded guilty to two eounts of sexual battery and two counts of aggravated assault on April 9, 1981. A Florida Sheriff testified that (1) the petitioner was booked into a count jail in Florida on January 27, 1981, (2) they moved the petitioner to a new cell by himself on January 29, 1981, (3) on February 15, 1981, they received a tip from another inmate, searched petitioner’s cell, and found that the locking mechanism on petitioner’s cell door had been almost completely cut through, and (4) a subsequent search of the same cell disclosed hidden saw blades. The most chilling testimony at the punishment phase of petitioner’s 1989 capital murder trial came from the victim of petitioner’s sexual assaults, who testified that (1) on January 26, 1981 while she was driving home from a night class, she heard and felt two short bursts of gun fire from another car driven by the petitioner strike her vehicle, (2) the petitioner then twice rammed his vehicle into her car and forced her to pull over, (3) the petitioner then pointed a gun at her face and directed her to open her door, (4) the petitioner got in her car and forced her into the passenger seat, • telling her that she should be still or he would kill her, (5) the petitioner waved off some other vehicles that slowed down, moved'his car off the road, and returned to her car, (6) the petitioner then directed her to move into the back seat of her vehicle, removed her glasses, and directed her to fondle him while he asked her many personal questions, (7) the petitioner then drove to a secluded area, directed her to remove her pants and exit her car, (8) the petitioner led her to a grassy area and directed her to undress completely, (9) the petitioner then repeatedly raped her vaginally, raped her anally, and made her give him her jewelry, (10) throughout her ordeal, the petitioner continuously asked her questions, repeatedly called her a liar, told her not to look at his face, and threatened her, at one point telling her “No funny stuff or I’ll blow your brains out,” (11) at another point, the petitioner placed his gun against her head, asked her if she could tell him the license plate number of his car, and told her that his car was stolen, (12) she attempted to answer his questions in the hope that it would calm him down, (13) after he finished raping her, the petitioner cleaned himself with her shirt, threw her shirt at her, and told her to put it on, (14) the petitioner then took her back to her ear, forced her to lay on the floor board, and drove her back to the location of his car, (15) the petitioner wiped his prints off her car and told her to wait there until she heard him beep his horn, (16) the petitioner drove away but never beeped his horn, (17) she drove to a neighbor and called the police, (18) she was examined at a hospital and when that examination showed that the petitioner had infected her with gonorrhea, she had to return to the hospital to receive antibiotic treatment, (19) law enforcement authorities were able to lift the petitioner’s finger prints off of her glasses, and (20) the petitioner pleaded guilty to two counts of sexual battery and two counts of aggravated assault arising from the incident in question. The defense offered the brief testimony of petitioner’s accomplice Manuel Villanueva to the effect that he had been permitted to plead to the lesser offense of murder and to receive a life sentence and introduced into evidence a juvenile case report prepared when the petitioner was still a youth which outlined the horrible, squalid, family conditions in which the petitioner had grown up. The prosecution then called as a rebuttal witness Sam Ponder, the assistant Bexar County District Attoméy who had supervised Villanueva’s prosecution, who testified that (1) he concluded after reviewing the evidence and conferring with his co-prosecutor that Villanueva was not intellectually capable of original thought, Villanueva was a follower, and that Villanueva had acted at the petitioner’s direction in connection with the murder, (2) he believed that Villanueva was mentally retarded, and (3) while a jury had found Villanueva competent to stand trial, he did not personally believe the death penalty was appropriate for someone of Villanueva’s diminished capacity. V. Punishment Phase Jury Instructions In his interrelated first and third claims for federal habeas relief, the petitioner argues that the jury instructions at the punishment phase of his 1989 capital murder trial effectively prevented, the jury from adequately considering and giving effect to the petitioner’s mitigating evidence of his youth at the time of the offense, his troubled childhood, his traumatic family history, his minority race, his functional illiteracy, his “nontriggerman” status, and the life sentence received by Villanueva. On June 9, 1989, petitioner’s jury heard the testimony of Sam Ponder, who had prosecuted Manuel Villanueva for his participation in petitioner’s crime, heard closing arguments from both sides, retired to render its verdict, and returned its verdict at the punishment phase of trial later that same date. ■ ■ ■ ' A. A Brief History of Mitigating Evidence A summary of relevant Supreme Court and Fifth Circuit case law addressing the constitutional requirements regarding the consideration of mitigating evidence in capital sentencing proceedings may provide a proper context for analysis of petitioner’s complaints about his punishment phase jury instructions. 1. Supreme Court Precedent In Woodson v. North Carolina, a Supreme Court plurality struck down as unconstitutional a mandatory death penalty scheme, in part, because it did not allow the sentencing authority to consider the character and record of the individual offender and the circumstances of the particular offense. However, the Supreme Court, plurality opinion in Woodson did not identify those aspects of a defendant’s character or offense that it deemed relevant as mitigating evidence. Acknowledging this omission, in Lockett v. Ohio, a different plurality of the Supreme Court emphasized the importance of individualized sentencing in criminal cases and held that a state judge had violated a capital murder defendant’s constitutional rights by refusing to consider evidence that the defendant (1) was only 21 at the time of the offense, (2) was successfully participating in a drug treatment program, (3) had a low-average or average intelligence and was not suffering from any mental deficiency, (4) had a prior criminal record that included a few minor offenses but no major crimes as a juvenile or adult, and (5) showed a favorable prognosis for rehabilitation. The Supreme Court plurality in Lockett declared that the Eighth Amendment requires a capital sentencing authority be permitted to consider as mitigating factors, any evidence regarding the defendant’s character or record or any of the circumstances of the offense that the defendant proffers as a basis for a sentence of less than death. In Eddings v. Oklahoma, a Supreme Court majority adopted the holding in Lockett and overturned the death sentence of a defendant because the sentencing judge had expressly refused to consider mitigating evidence showing that the defendant (1) had been raised without proper guidance following his parents’ divorce when he was only 5, (2) had lived with virtually no supervision from his alcoholic and promiscuous mother until he reached 14, when he was sent to live with his physically abusive father, (3) was emotionally disturbed and exhibited a mental and emotional development several years below his age, (4) was categorized by a psychologist as a sociopath and antisocial but given a thirty percent chance of growing out of that condition, (5) was identified as being a potential prospect for rehabilitation with proper therapy for 15-20 years, and (6) probably did not know what he was doing when he fired the fatal shot and, with proper therapy, would not be a threat to society. The Supreme Court majority in Eddings expressly held that the foregoing evidence of the defendant’s difficult family history and emotional disturbance was typical of the type of relevant mitigating evidence which the Eighth Amendment compels a capital sentencing authority to consider before imposing the death penalty. In Skipper v. South Carolina, the Supreme Court overturned a death sentence because the state trial court had excluded what the Supreme Court held to be relevant, mitigating evidence that the defendant had been a well-behaved and disciplined prisoner, to wit, testimony establishing that the defendant (1) had conducted himself well while in jail awaiting trial, (2) had earned the equivalent of a high school diploma during a previous incarceration, (3) had made a good adjustment to prison life, and (4) planned to work while incarcerated to earn money for his family. In Hitchcock v. Dugger; the Supreme Court struck down a death sentence after concluding that the defendant’s sentencing jury had been- precluded form considering the defendant’s mitigating evidence that (1) as a child he had the habit of inhaling gasoline fumes, (2) he once passed out after doing so, (3) thereafter his mind tended to wander, (4) he had been one of seven children in a poor family that picked cotton for a living, (5) his father had died of cancer, (6) the defendant had been a fond and affectionate uncle to the children of his brother, (7) the defendant showed a potential for rehabilitation, and (8) he had voluntarily surrendered to authorities. In Mills v. Maryland> the Supreme Court struck down a death sentence imposed by a jury that had been given both a confusing and ambiguous set of instructions and a verdict form which could have been construed to bar the jury’s consideration of the defendant’s mitigating evidence of his youth, mental infirmity, lack of future dangerousness, and State’s failure to attempt to rehabilitate him during his prior incarceration unless the jury agreed unanimously on each mitigating factor. In McKoy v. North Carolina, the Supreme Court struck down a state requirement that a jury unanimously agree before it could consider mitigating evidence, including the defendant’s evidence that he (1) suffered from mental impairments that diminished his ability to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law, (2) had borderline intellectual functioning and an IQ of 74, (3) committed his crime while under the influence of mental or emotional disturbance, (4) was 65 at the time of the offense, (5) had for several decades exhibited signs of mental or emotional disturbance that went untreated, (6) suffered from a mental or emotions disturbance that was aggravated by his poor physical health, and (7) had an impaired ability to remember of the events of the day of his offense. In Penry v. Lynaugh, decided June 26, 1989, less than three weeks after the petitioner’s trial ended, the Supreme Court held the Texas capital sentencing scheme unconstitutional as applied to a defendant who had introduced evidence of his abusive childhood and mental retardation. More specifically, Penry had introduced evidence during his trial which established that (1) he suffered from organic brain disorder and mental retardation, (2) these conditions made it impossible for him to appreciate the wrongfulness of his conduct or to conform his conduct to the law, and (3) when he was child, his mother frequently beat him over the head with a belt and routinely locked him in his room without access to the toilet for long periods of time. The Supreme Court subsequently explained that it ■ considered the foregoing evidence to be “mitigating” because it indicated that the defendant suffered from a diminished ability to control his impulses or to evaluate the consequences of his conduct and therefore reduced his moral culpability. The Supreme Court majority concluded in Penry that, in answering the three special issues submitted to it during the punishment phase of trial, Penr/s Texas jury had not been able to consider and give effect to all of Penry’s mitigating evidence “without any jury instructions on mitigating evidence.” Therefore, the Supreme Court concluded that Penry was constitutionally entitled to further instructions informing the jury that it could consider and give effect to his evidence by declining to impose the death penalty. In several subsequent decisions, however, the Supreme Court has circumscribed its holding in Penry. In Graham v. Collins, the Supreme Court held that its opinion in Penry should not be construed as broadly suggesting the invalidity of the Texas special issue framework and held that Graham’s sentencing jury could give adequate consideration, without the necessity of a Penry instruction, to Graham’s mitigating evidence of his youth, good character traits, efforts to be a responsible father, nonviolent and religious nature, and unstable family background. In Johnson v. Texas, the Supreme Court upheld a Texas prisoner’s capital murder conviction and death sentence against a claim that the former Texas capital murder statute precluded the jury from considering and giving effect to mitigating evidence of the defendant’s youth at the time of his offense. Thus, while the Supreme Court has emphasized in its post-Penry opinions the broad scope of potentially mitigating evidence that a Texas capital sentencing jury may adequately consider without the necessity of a Penry instruction, that court has taken great pains not to require explicit consideration of all evidence that might arguably possess some potential mitigating value. Contrary to the suggestions implicit in petitioner’s first and third claims for relief herein, neither before nor after Penry has the Supreme Court ever, recognized any broad-ranging Eighth Amendment right to either (1) compel a capital sentencing authority to consider any and all manner of evidence which a capital murder defendant considers “relevant” in an abstract sense when deciding whether to impose the death penalty or (2) require the sentencing authority to consider an emotional appeal based on pur-, portedly mitigating evidence. In Lockett v. Ohio, the Supreme Court plurality expressly acknowledged the “traditional authority of a court to exclude, as irrelevant, evidence not bearing, on the defendant’s character, prior record, or the circumstances of his offense.” In Skipper v. South Carolina, the Supreme Court majority specifically disavowed the suggestion that “all facets of the defendant’s ability to adjust to prison life must be treated as relevant and potentially mitigating.” In California v. Brown, a Supreme Court plurality upheld as eonstitutional a capital sentencing jury instruction which directed the jury not to be swayed by mere sentiment, conjecture, sympathy, passion, prejudice, public opinion, or public feeling. In Franklin v. Lynaugh a majority of Supreme Court justices agreed that (1) a capital sentencing authority is not constitutionally required to give consideration to “residual doubts” about the defendant’s innocence because such matters are relevant to neither the defendant’s character or record nor the circumstances of the offense and (2) the Texas capital sentencing special issue regarding future dangerousness affords the sentencing jury adequate opportunity to consider a capital murder defendant’s evidence of his good behavior in prison. In Baffle v. Parks, the Supreme Court upheld as constitutional a jury instruction directing a capital sentencing jury to “avoid any influence of sympathy, sentiment, passion, prejudice, or other arbitrary factor when imposing sentence” and held inconsistent with its prior opinions an argument that the Constitution requires the jury be allowed to consider and give effect to emotions that are based on mitigating evidence. In Tuilaepa v. California, the Supreme Court distinguished the two aspects of the capital decision-making process, i.e., the eligibility decision and the selection process, and emphasized that, while both inquiries necessarily involve resolution of issues that bear a factual nexus to the crime, the selection process must also focus on the character and record of the defendant. In Buchanan v. Angelone, the Supreme Court reaffirmed the vitality of the two-stage Tuilaepa analysis and rejected an argument that the Constitution mandates jury instructions at the selection stage of a capital sentencing proceeding regarding the nature of mitigating evidence or the manner in which the sentencing jury is to consider specific statutorily-defined mitigating factors, such as the defendant’s age, lack of prior criminal activity, extreme emotional or mental disturbance, and significantly impaired capacity to appreciate the criminality of his conduct. The first part of the Tuilaepa analysis, i.e., the eligibility decision, was discussed by the Supreme Court in Loving v. United States The Eighth Amendment requires, among other things, that “a. capital sentencing- scheme must ‘genuinely narrow the class of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder.’ ” Some schemes accomplish that narrowing by requiring that the sentencer find at least one aggravating circumstance. The narrowing may also be achieved, however, in the definition of the capital offense, in which circumstance the requirement that the sentencer “find the existence of the aggravating circumstance in addition is no part of the constitutionally required narrowing process.” Under the Texas capital sentencing scheme, this constitutionally-mandated narrowing function is performed at the guilt-innocence phase of trial. It is in the selection phase that a sentencer may not be precluded from considering, and may not refuse to consider, any constitutionally relevant mitigating evidence. Therefore, this Court’s analysis of the petitioner’s claims regarding mitigating evidence must focus on the second aspect of the Tuilaepa analysis. 2. Treatment of Penny Mitigating Evidence In the wake of Penny and the other Supreme Court opinions summarized above, both the Supreme Court and the Fifth Circuit have addressed a wide range of constitutional challenges to individual applications of the Texas capital sentencing scheme. From those opinions, it is possible to discern a coherent approach to the subject of mitigating evidence. The Supreme Court and Fifth Circuit have each emphasized that a jury in a capital murder trial must be permitted to examine the defendant’s character and record, as well as the circumstances of the particular offense in determining whether to impose the death penalty: [I]n capital cases the fundamental respect for humanity underlying the Eighth Amendment requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death. Therefore, a sentencing jury in a capital murder trial may not be prevented from considering any mitigating evidence presented by the defendant which relates to the defendant’s character or record or the circumstances of the offense. In other words, the jury at petitioner’s trial must have been afforded adequate opportunity to give effect to petitioner’s mitigating evidence of his character and background, as well as his evidence of the circumstances surrounding his offense. Probably because petitioner’s trial was completed in the weeks prior to the Supreme Court’s issuance of its opinion in Penry, the state trial court did not give petitioner’s jury any special instructions regarding mitigating evidence at the punishment phase of trial such as the one required in Penry. The question before the Court is whether the absence of such an instruction in petitioner’s case violated constitutional principles, i.e., effectively deprived petitioner’s jury of the opportunity to consider his constitutionally relevant mitigating evidence. The Fifth Circuit has held that a Penry instruction is only required in those instances in which the major mitigating thrust of the evidence is substantially beyond the scope of all the special issues under the Texas capital sentencing scheme. The Fifth Circuit has recognized that a wide range of potentially mitigating evidence can be considered within the scope of the Texas capital sentencing special issues mthout the necessity for a Penry instruction. The Supreme Court and Fifth Circuit have each held that the Texas capital sentencing special issues allow adequate consideration of the mitigating effects of evidence of a defendant’s youth so as to negate the necessity for a Penry instruction on such evidence. Likewise, the Fifth Circuit has repeatedly held that the Texas capital sentencing special issues are sufficiently broad to permit adequate consideration of evidence the accused was voluntarily intoxicated at the time of his offense. The Fifth Circuit has also repeatedly held that a Texas capital sentencing jury may give adequate consideration to evidence showing a defendant neither fired the fatal shot nor delivered the fatal blow without the necessity of a Penry instruction. Thus, evidence of such matters does not require any special jury instructions; Texas sentencing juries can adequately consider these types of evidence without the necessity of supplemental jury instructions like those mandated by Penry. Consistent with the Supreme Court opinions summarized above, the Fifth Circuit has held that, to constitute relevant mitigating evidence for Penry purposes, evidence of a defendant’s background and character must relate to, and diminish the defendant’s moral culpability for the offense with which he is charged. Thus, the first inquiry in a Penry claim is whether the mitigating evidence is relevant, i.e., does the evidence implicate the basic concern of Penry that defendants who commit criminal acts that are attributable to a disadvantaged background, or to emotional and mental problems, may be less culpable then defendants who have no such excuse. In order to meet this relevanee standard, the evidence must show (1) a uniquely severe permanent handicap with which the defendant is burdened through no fault of his own and (2) that the criminal act was attributable to this severe permanent condition. A properly preserved Penry claim will only prove meritorious if two requirements are met: first, the evidence proffered at trial must actually be “mitigating”, i.e., it must relate to the defendant’s character or background or to the circumstances of the offense and be sufficient to lead a reasonable juror to impose a penalty less than death; and second, the evidence proffered at trial must have been beyond the “effective reach” of the jury, i.e., there must be a reasonable likelihood that the jury applied the Texas special issues in a way that prevented consideration of the constitutionally relevant mitigating evidence. A failure to satisfy either prong of this analysis renders a Penry claim meritless. Furthermore, Penry does not require that a sentencer be able to give effect to a defendant’s mitigating evidence in whatever manner or to whatever extent the defendant desires. A jury need only be provided one fair vehicle for considering mitigating evidence. The State can “structure” the jury’s consideration of mitigating evidence, so long as it does not prevent -the jury from giving effect to any constitutionally relevant mitigating evidence. 3. Synthesis From careful scrutiny of the foregoing Supreme Court and Fifth Circuit opinions, a coherent approach to the treatment of mitigating evidence in Texas capital sentencing proceedings emerges. In mathematical terms, the universe of evidence relevant at a capital murder trial includes a set of “constitutionally relevant mitigating evidence,” i.e., evidence which relates to the defendant’s character or background or to the circumstances of the offense and is sufficient to lead a reasonable juror to impose a penalty less than death. The Fifth Circuit has defined this type of evidence as that which establishes that (1) the defendant suffered from a uniquely severe permanent handicap with which the defendant is burdened through no fault of his own and (2) the defendant’s criminal act was. attributable to this severe permanent condition. Within this set of constitutionally relevant mitigating evidence there exists of subset of Penry mitigating evidence, i.e., mitigating evidence that cannot be treated as “mitigating,” i.e:, as warranting a penalty less than death, without additional instructions or issues being submitted to the sentencing jury to explain how that evidence may be given mitigating effect. Essentially, what the Fifth Circuit has done in its many opinions discussing Penry mitigating evidence is to define such evidence as constitutionally relevant mitigating evidence which cannot be given adequate mitigating consideration by a Texas capital sentencing jury faced solely with the statutory Texas special sentencing issues. Most of the Fifth Circuit opinions outlined above addressed unsuccessful arguments by capital murder defendants to the effect that a wide variety of evidence concerning then-backgrounds or the circumstances of their crimes fell within this narrow subset of Penry evidence. Most significant for purposes of this Court’s analysis of petitioner’s claims relating to his punishment phase jury instructions is the narrow way in which the Fifth Circuit has defined “constitutionally relevant mitigating evidence.” The Fifth Circuit has defined “constitutionally relevant mitigating evidence” as evidence which shows (1) the defendant suffers from a uniquely severe permanent handicap with which the defendant is burdened through no fault of his own and (2) the defendant’s criminal act was attributable to this severe permanent condition. With these principles in mind, this Court now turns to the petitioner’s first and third claims for relief herein. B. Construing the 1989 Penalty Phase Jury Instructions 1. Quasi-Penry Claims ' a. Petitioner’s Youth and Family Background Petitioner contends that the “non-law-of-parties” instruction included in the punishment phase jury instructions at his 1989 capital murder trial effectively precluded the jury from considering his purportedly mitigating evidence regarding his troubled childhood, youth, race, family problems, and purported illiteracy because the instruction in question focused the jury’s attention exclusively on the petitioner’s conduct at the time of his offense and in the future. However, none of this evidence required a Penry instruction. Thus, assuming arguendo that all of this evidence fell within the parameters of “constitutionally relevant mitigating evidence,” none of this mitigating evidence was outside the reach of the petitioner’s sentencing jury at the 1989 trial. Insofar as petitioner raises a Penry or quasi-Penry claim herein based upon the evidence of his troubled childhood, youth, race, family problems, and purported illiteracy, those claims do not warrant federal habeas relief. Petitioner’s sentencing jury could have adequately considered all of that evidence without the necessity for a Penry instruction. Furthermore, while petitioner did introduce evidence regarding his .youth, race, illiteracy, troubled childhood, arid deprived family background at the punishment phase of his 1989 capital murder trial, petitioner did not introduce any evidence linking any of that evidence to petitioner’s criminal conduct on August 4, 1979. Petitioner failed to show a “nexus” between- either his youth, race, illiteracy, deprived family background, or troubled childhood and his offense, i.e., that his criminal conduct was attributable to his troubled childhood and deprived family background. Thus, this evidence did not rise to the level of constitutionally relevant mitigating evidence, much less Penry mitigating evidence. b. Petitioner’s “Non-Triggerman” Status Petitioner’s complaint that his sentencing jury was unable to adequately consider his evidence that Villanueva actually delivered the fatal stab wound to Joey Hernandez’s cervical vertebrae was also well within the reach of petitioner’s 1989 capital sentencing jury. A Texas capital sentencing jury may give adequate consideration to evidence showing a defendant neither fired the fatal shot nor delivered the fatal blow without the necessity of a Penry instruction. c. Villanueva’s Life Sentence Petitioner’s quasi-Penry complaint that the jury instructions at the pun: ishment phase of his 1989 capital murder trial precluded the jury from considering and giving mitigating effect to his evidence regarding the life sentence which Manuel Villanueva received for his role in the same criminal offense fails for a slightly different reason. Petitioner’s evidence regarding Villanueva’s life sentence did not constitute “constitutionally relevant mitigating evidence,” as defined by the Fifth Circuit. The parameters of constitutionally relevant mitigating evidence are limited to evidence that establishes (1) the defendant suffered from a uniquely severe permanent handicap with which the defendant is burdened through no fault of his own and (2) the defendant’s criminal act was attributable to this severe permanent condition. The happenstance ■ that a different sentencing authority, or in Villanueva’s case a different prosecutor, chose to display mercy toward Villanueva based on the peculiarities of Villanueva’s own character, background, record, and role in the offense, bears no relevance to the propriety of the petitioner’s sentence. Villanueva’s life sentence does not establish or tend to establish either that (1) the petitioner suffered from a uniquely severe permanent handicap with which the petitioner was burdened through no fault of his own or (2) the petitioner’s criminal acts were attributable to this severe permanent condition. Villanueva’s life sentence simply bears no relationship to the petitioner’s character or background or the circumstances of the crime. Likewise, it was a legal impossibility for petitioner’s August, 1979 crime to have been “attributable” to an event, i.e., the decision to allow Villanueva to plead guilty to ordinary murder and receive a life sentence, which occurred years after the petitioner’s offense. Evidence that does not bear on the defendant’s character, record, or crime may properly be excluded at the sentencing phase of a capital murder trial. The foregoing principles have long guided federal sentencing practice; a federal criminal defendant cannot rely upon the sentences imposed upon his co-defendants as a yardstick of his own. Therefore, petitioner’s evidence regarding Villanueva’s sentence could not furnish the basis for a constitutional claim because, even if the jury could not give mitigating effect to same, that evidence did not constitute “constitutionally relevant mitigating evidence.” 2. Temporal Limiting Instructions However, petitioner’s complaint goes beyond Penry or quasi-Penry issues. He also complains that his sentencing jury could have construed his 1989 punishment phase jury instructions as precluding consideration of legitimate, constitutionally relevant mitigating evidence. More specifically, petitioner complains about the following language included in his 1989 punishment phase jury instructions: You are instructed , that the law of parties, on which you were instructed at the first phase of trial, has no applicability to this phase of trial. In answering these special issues, you will consider only such evidence, if any, as you might believe relevant to the conduct, if any, of the defendant at the time of the offense, and to his future conduct. Petitioner argues that the phrase “at the time of the offense, and to his future conduct” could have been construed by his jury as precluding them from considering the evidence of petitioner’s youth, race, deprived family background, and troubled childhood when answering the special sentencing issues. However, respondent points out that the state trial court included the following instruction on the next page of the punishment phase jury instructions: You are further instructed that in determining each of these special issues you may take into consideration all of the evidence submitted to you in the fill trial of the case, that is, all of the evidence submitted to you in the trial of the first part of this case wherein you were called upon to determine the guilt or innocence of the defendant, and all of the evidence, if any, admitted before you in the second part of the trial wherein you are called upon to determine the special issues hereby submitted to you. The proper standard for reviewing a challenged jury instruction in the capital sentencing context is “whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence.” This “reasonable likelihood” standard does not require the petitioner to prove that the jury “more likely than not” interpreted the challenged instruction in an impermissible way; however, the petitioner must demonstrate more than “only a possibility” of an impermissible interpretation. This Court must analyze the challenged jury charge within the context of the overall jury charge. “In evaluating the instructions, we do not engage in a technical parsing if this language of the instructions, but instead approach the instructions in the same way that the jury would — -with a ‘cpmmonsense understanding of the instructions in the light of all that has taken place at the trial.’ ” Assuming arguendo that all of the petitioner’s evidence regarding his youth, troubled childhood, minority race, family problems, purported illiteracy, co-defendant’s life sentence, and “non-triggerman” status qualified as constitutionally relevant mitigating evidence, petitioner’s construction of his punishment phase jury instructions does not satisfy this “reasonable likelihood” standard. It is not reasonably likely that the petitioner’s 1989 jurors construed the language directing them to focus on the defendant’s conduct as prohibiting them from considering the evidence of the petitioner’s difficult childhood and deprived family background. The Supreme Court recently emphasized that a state trial court’s instruction that a sentencing jury consider “all the evidence” affords the jury an opportunity to consider mitigating evidence and that the Constitution does not require specific instructions guiding the jury at the selection stage of a capital murder trial on either the concept of mitigation or the nature of statutorily defined mitigating factors. In two recent opinions, the Fifth Circuit held that the giving of a jury instruction pursuant to Section 8.04(b) of the Texas Penal Code at the punishment phase of a capital murder trial did not deprive the defendant of his constitutional rights. In each of those eases, the Fifth Circuit addressed claims that a pair of Texas capital murder defendants’ constitutional rights were violated when their state trial courts specifically instructed their juries at the punishment phase of trial, pursuant to Section 8.04(b) of the Texas Penal Code, that those juries could consider evidence of the defendants’ voluntary in