Full opinion text
EDITH H. JONES, Chief Judge: This death penalty case is reconsidered pursuant to the Supreme Court’s instruction following its summary grant of certio-rari and the vacating of our prior opinion based on Tennard v. Dretke, 542 U.S. 274, 124 S.Ct. 2562, 159 L.Ed.2d 384 (2004). The panel affirms, but we are divided on our reasoning. In his appeal to this court, Nelson sought a COA on three issues: (1) whether the Texas penalty phase instructions used at trial provided the jury with an adequate vehicle to consider his mitigating evidence, as required by the Eighth and Fourteenth Amendments as construed in Penry v. Ly-naugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989); (2) ineffectiveness of counsel for failing to request an instruction on the definition of reasonable doubt at the penalty phase; and (3) improper testimony by a state psychiatrist in light of Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981). We granted a COA on the first two issues but denied COA on the third issue and ultimately affirmed the district court’s denial of habeas relief. Nelson then appealed to the Supreme Court. Following that Court’s decision in Tennard v. Dretke, 542 U.S. 274, 124 S.Ct. 2562, 159 L.Ed.2d 384 (2004), and remand to this court, we requested further briefing based on Tennard. After again reviewing the complete record, we reaffirm the grant of COA and affirm the district court’s denial of habeas relief as to Nelson’s Penry claim. BACKGROUND Nelson was indicted for the capital murder of Charla M. Wheat and the attempted capital murder of Wheat’s roommate Carol Maynard that occurred on or about February 23, 1991. In December 1991, Nelson was tried for the capital murder of Wheat. During the guilVinnocence phase of trial Maynard testified as to the events of February 23. Specifically, Maynard testified that she and Wheat were forced, at knife-point, by Nelson to perform sexual acts on each other and on Nelson. Maynard further testified that Nelson stabbed Wheat. Nelson also stabbed Maynard, who was five months pregnant at the time, but she pretended to be dead and thus survived. Other testimony established that the stab wounds were the cause of Wheat’s death. Also, at trial, two voluntary confessions by Nelson admitted that he committed the crime because he “was drunk and wanted a piece of butt.” On December 11, 1991, the jury found Nelson guilty of capital murder. On December 13, following the punishment phase of trial, the jury answered affirmatively the two special issues submitted pursuant to Texas Code of Criminal Procedure article 37.071(b). Nelson was sentenced to death. Nelson’s sentence and conviction were affirmed on direct appeal by the Texas Court of Criminal Appeals on May 26, 1993. The United States Supreme Court denied Nelson’s petition for writ of certiorari on March 21, 1994. On April 17, 1997, Nelson commenced a series of state applications for writ of ha-beas corpus. The state district court issued findings of fact and conclusions of law recommending denial of relief on all of Nelson’s claims on July 10, 2001. The Texas Court of Criminal Appeals denied Nelson’s application on the findings and recommendations of the trial court. Additionally, it dismissed Nelson’s subsequent application as an abuse of the writ under Texas Code of CRIMINAL Procedure ARTICLE 11.071, § 5(a). DISCUSSION As we did in Nelson’s prior appeal, we grant a COA on the question whether the special issue instructions given to the jury at sentencing failed to provide an adequate vehicle to give effect to his mitigating evidence in violation of Penry v. Lynaugh (Penry I), 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989), and in light of Ten nard and Smith. The instructions given by the trial court were, in pertinent part, the standard Texas capital case instructions, i.e., those given in Penry I. We grant a COA, but we conclude that, although the district court partially relied on this court’s now-defunct “constitutional relevance” analysis of mitigating evidence, the district court properly denied relief on Nelson’s Penry claim. See, e.g., McGruder v. Will, 204 F.3d 220, 222 (5th Cir.2000) (“We need not accept the district court’s rationale and may affirm on any grounds supported by the record.”). We cannot grant relief on a constitutional claim raised in a petition for habeas corpus unless the state court adjudication “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). Although we review the federal district court’s treatment of Nelson’s habeas petition, the real focus of inquiry is the decision of the Texas courts, none of which used this court’s now-overruled test. This court recently noted that, “The Supreme Court’s rulings in Penry II and Smith should not be read to disturb its earlier holdings affirming the constitutionality of Texas’s statutory death penalty sentencing scheme.” Bigby v. Dretke, 402 F.3d 551, 570 (5th Cir.2005) (internal citations omitted). Accordingly, for a Penry I claim to succeed, a court must first determine whether the defendant’s proffered mitigating evidence reasonably might serve as a basis for a sentence less than death. Tennard, 124 S.Ct. at 2571. In this inquiry, mitigating evidence is “relevant” so long as it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Id. (quoting McKoy v. North Carolina, 494 U.S. 433, 440, 110 S.Ct. 1227, 1232, 108 L.Ed.2d 369 (1990) and New Jersey v. T.L.O., 469 U.S. 325, 345, 105 S.Ct. 733, 744, 83 L.Ed.2d 720 (1985)). Second, we must determine whether the proffered, relevant evidence was beyond the “effective reach” of the jurors. Madden v. Collins, 18 F.3d 304, 308 (5th Cir.1994). Evidence is beyond the “effective reach” of the jury “only if there exists a reasonable likelihood that the jury would have [found] itself foreclosed from considering” the mitigating evidence. Johnson v. Texas, 509 U.S. 350, 368, 113 S.Ct. 2658, 2669, 125 L.Ed.2d 290 (1993). In the sentencing phase, Nelson introduced evidence that (1) his mother rejected him; (2) he was intoxicated by drugs and alcohol when he committed the crime; (3) he had troubled relationships with his. brother and women; and (4) he suffered from a treatable borderline personality disorder. In light of Tennard, all of this evidence could be construed as mitigating, but only Nelson’s evidence of borderline personality disorder arguably supports the second prong of his Penry I claim. Nelson’s evidence relating to his troubled interpersonal relationships and indifferent treatment by his mother is within the reach of the Texas punishment issues. The state court reasonably distinguished Nelson’s claim from Penry’s evidence of severe physical abuse by his mother. The state court’s decision is supported by longstanding precedent concerning similar — and more severe — claims of parental abuse and troubled interpersonal relationships. See Graham v. Collins, 506 U.S. 461, 476, 113 S.Ct. 892, 902, 122 L.Ed.2d 260 (1993) (concluding family background could be considered within the special issues); Cole v. Dretke, 418 F.3d 494 (5th Cir.2005) (holding troubled childhood, including alcoholic parents who deserted the defendant, alcoholic grandparents who did not want to care for the defendant upon taking custody of him, and an isolated childhood punctuated by frequent changes in caretakers could be considered within the special issues); Lucas v. Johnson, 132 F.3d 1069, 1082-83 & n. 8 (5th Cir.1998) (traumatic childhood was within the effective reach of the jury under the first special issue, deliberateness); Drew v. Collins, 964 F.2d 411, 420 (5th Cir.1992) (adverse effects of troubled childhood — including testimony that parents fought repeatedly, parents divorced and abandoned petitioner when he was very young, and petitioner was raised by his grandparents — could be considered under the special issues); Barnard v. Collins, 958 F.2d 634, 639 (5th Cir.1992) (troubled childhood, including evidence that petitioner’s father abandoned him from age four to age nine, was not Penry evidence absent proof these experiences had a psychological effect on the petitioner). Specifically, when considering the first special issue, deliberateness, the jury could have given effect to Nelson’s claims that his mother abandoned him, his parents divorced at a young age, and he never had a relationship with his own child. All of these traumatic experiences might have countered the State’s argument that Nelson “deliberately” murdered this victim; the jury simply disagreed. As to Nelson’s mitigation claim of voluntary intoxication, the state courts and federal district court correctly held that the special issues plainly allowed the jury to consider this evidence. See West v. Johnson, 92 F.3d 1385, 1405 (5th Cir.1996) (“As to the drinking and inference of intoxication, we have many times held that this may be adequately taken into account under both the first and second punishment issues (deliberateness and future dangerousness).”); Briddle v. Scott, 63 F.3d 364, 377 (5th Cir.1995)(“[E]vidence of intoxication may be considered as favorable to a negative answer to both the first and second punishment special issues, and hence is not Penry evidence.”); see also Gra ham v. Collins, 506 U.S. at 500, 113 S.Ct. at 915. Turning finally to Nelson’s evidence relating to a borderline personality disorder, his expert characterized the disorder as one that causes Nelson’s moods to shift from normal to depressed and anxious. Dr. Hickman, Nelson’s expert, described Nelson’s personality disorder as a psychological condition that caused his moods to go up and down between being normal and being depressed, anxious, and unsure of the reasons for his mood swings. Nelson responded to this condition by consuming alcohol and/or drugs. Significantly, Dr. Hickman testified that Nelson’s disorder was treatable with medication and psychotherapy. This court’s decisions undermine Nelson’s claim that the jury was unable to give mitigating effect to this evidence. In Coble v. Dretke, 417 F.3d 508 (5th Cir.2005), the court reiterated that “mitigating evidence of mental illness could be considered within the context of the second special issue, future dangerousness, if the illness can be controlled or go into remission.” Id. at 524 (citing Lucas v. Johnson, 132 F.3d 1069, 1082-83 (5th Cir.1998) and Robison v. Johnson, 151 F.3d 256, 266 (5th Cir.1998)). Coble also distinguished a condition involving a treatable mental disorder from this court’s Bigby decision, 402 F.3d at 571, in which medication could not control the defendant’s schizophrenic behavior and thinking. Nelson’s treatable disorder is thus distinct from one that mandates relief under Penry I. Alternatively, we hold that Nelson’s scanty evidence of borderline personality disorder falls within a qualification to the Court’s reasoning in Tennard, which recognized that relevant mitigating evidence ultimately may be insufficient to warrant a sentence less than death if a reasonable jury could not so find based on all of the evidence in the case. Tennard, 124 S.Ct. at 2570; accord Bigby, 402 F.3d at 567-69. Further, under Tennard, evidence of a trivial feature of the defendant’s character or the 'circumstances of the crime unlikely to have any tendency to mitigate the defendant’s culpability may be deemed irrelevant and inadmissible. Tennard, 124 S.Ct. at 2571. Nelson’s evidence of borderline personality disorder was not “of such a character that it ‘might serve as a basis for a sentence less than death.’ ” Id. (quoting Skipper v. South Carolina, 476 U.S. 1, 5, 106 S.Ct. 1669, 1671, 90 L.Ed.2d 1 (1986)). When juxtaposed with the significant aggravating evidence, the purported mitigating evidence of this condition and its effects could not reasonably provide a jury with sufficient reason to render a life sentence. Based on the AEDPA standard and the nature of Nelson’s proffered evidence, we cannot say that the Court of Criminal Appeals unreasonably applied clearly established federal, law in rejecting Nelson’s Penry claim. Nelson points to no caselaw that the state courts failed to acknowledge, nor to any Supreme Court decisions that the courts unreasonably applied. Any analytical problems in this case were made by this court (and the federal district court following this court’s precedent) in our previous, vacated decision. The Court of Criminal Appeals never relied on the now-defunct “constitutional relevance” test or its component parts, nor has our review of the complete record revealed any attempt by that court to place an elevated burden on Nelson for his claims. Equally important, all of Nelson’s proffered mitigating evidence could be considered and given effect by the jury at sentencing within the context of the Texas punishment issues. Therefore, we affirm, albeit for different and additional reasons, the district court’s denial of relief on this claim. CONCLUSION With respect to all claims except Nelson’s Penny claim, we reinstate our earlier decision (granting COA on the ineffective assistance claim and denying relief on the merits, and denying COA as to all other issues raised in Nelson’s habeas petition). After a careful examination of Supreme Court precedent and additional briefing on Nelson’s Penny I claim, we grant COA but find his argument lacking on the merits. The judgment of the district court is AFFIRMED. . Judge Stewart concurs in the judgment. Judge Dennis specially concurs infra. . We reinstate our denial of relief and of COA on the issues not relevant to Tennard. . The special issues are: (b) On conclusion of the presentation of the evidence, the court shall submit the following ... [special] issues to the jury: (1) whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result; (2) whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society[.] TexCode Crim. Proc Ann. art. 37.071(b)(1) and (2). This statute was amended in 1991. All references to the "special issues” in this opinion reflect the statute as it was written at the time of Nelson’s trial. . Nelson contends that evidence of his organic brain damage could not be fully considered by the jury within the scope of the special issues. There is no such evidence. The only record evidence of organic brain damage is a single sentence of testimony from an expert witness for the defense, stating "there is minimal room to consider that there may be minimal brain damage.” The expert, however, explicitly said that he could not make a formal diagnosis that Nelson in fact had brain damage. He only suggested that if further medical examinations were performed, the existence of brain damage should not be ruled out prior to the exam. This evidence was not before the jury and can play no role in a Penry analysis. . See id. at 2570 (citing, New Jersey v. T.L.O., 469 U.S. at 345, 105 S.Ct. 733 ("[I]t is universally recognized that evidence, to be relevant to an inquiry, need not conclusively prove the ultimate fact in issue, but only have 'any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.’ ”) (quoting Fed. Rule Evid. 401)). . Lucas does not make any reference to, or rely upon, the tests rejected by the Supreme Court in Tennard. Barnard and Drew do rely on our now-defunct "uniquely severe perma-dient handicap” test as to other claims, but in no way used this test in adjudicating the claims of parental neglect. Therefore, the relevant aspects of Barnard and Drew are still controlling and support denial of Nelson’s Penry claim concerning parental neglect. . None of these precedents makes any reference to, or rely upon, the tests rejected by the Supreme Court in Tennard. . As in Coble, we need not speculate under what circumstances the first special issue, concerning a defendant’s deliberateness in perpetrating the capital crime, will be inadequate to afford full mitigating effect to evidence of mental illness. Cf. Lucas, 132 F.3d at 1082-83; Bigby, 402 F.3d at 565-66. . We express no opinion on whether any allegation of mental disorder, no matter how nebulous, calls into question the sufficiency of the Texas special issues. .The fact that an item of evidence is relevant, however, does not mean that it is sufficient to prove the fact of consequence to which it is directed. See Fed.R.Evid. 401 Advisory C. Notes (" 'A brick is not a wall ... It is not to be supposed that every witness can make a home run.' ”).
DENNIS, Circuit Judge, concurring in the judgment: I agree with the judgment proposed by Chief Judge Jones’ opinion, but because I cannot fully subscribe to either rationale given in the opinion, I respectfully concur in the judgment only for the following different reasons. I. Procedural Background In Nelson v. Cockrell, 77 Fed.Appx. 209 (5th Cir.2003), this panel granted Nelson’s application for a COA on whether the special issues instruction used in the capital punishment sentencing proceeding failed to provide the jury with an adequate vehicle to give full consideration and effect to the defendant’s mitigating evidence in violation of the Eighth and Fourteenth Amendments as construed in Penny v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989) (Penny I). After considering his appeal, this panel concluded that none of Nelson’s evidence is incapable of being assessed and assigned full mitigating weight under the charge presented to his jury; and that the state court did not unreasonably apply clearly established federal law in rejecting Nelson’s claim. Nelson, supra. In the reasons given for these conclusions, however, the panel did not discuss the state court decision or examine Penry v. Johnson, 532 U.S. 782, 121 S.Ct. 1910, 150 L.Ed.2d 9 (2001) (Penny II) or any other Supreme Court opinion. The panel’s conclusions were based on threshold or screening rules created by decisions of this Circuit and largely collected in Robertson v. Cockrell, 325 F.3d 243 (5th Cir.2003). Those rules were based on holdings by this court that substance addiction is not Penny-type. evidence; that treatable mental disease, like borderline personality disorder, can be given full effect via the special issues; that non-extreme childhood abuse and neglect is not constitutionally relevant; and that evidence of possibility of brain damage without causal nexus to the crime is not constitutionally relevant. See, Nelson, 77 Fed.Appx. at 213 (citing, inter alia, Robertson, supra; Graham v. Collins, 950 F.2d 1009 (5th Cir.1992)). The Supreme Court granted certiorari, vacated this panel’s judgment and remanded the case to us for further consideration in light of Tennard v. Dretke, 542 U.S. 274, 124 S.Ct. 2562, 159 L.Ed.2d 384 (2004). See Nelson v. Dretke, 542 U.S. 934, 124 S.Ct. 2905, 159 L.Ed.2d 808 (2004). The light shed by the Supreme Court’s holding in Tennard includes the following: (1) The Fifth Circuit’s threshold “constitutional relevance” tests have no foundation in the Supreme Court’s decisions. Relevant evidence is evidence that has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable that it would be without the evidence. This general standard of relevance applies in death penalty cases just as it does in other cases. McKoy v. North Carolina, 494 U.S. 433, 440-41, 110 S.Ct. 1227, 108 L.Ed.2d 369 (1990). (2) Once this low relevance threshold is met, the Eighth Amendment requires that the jury must be able to consider and give effect to a capital defendant’s mitigating evidence. Id. (quoting Boyde v. California, 494 U.S. 370, 377-78, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990)). Impaired intellectual functioning has mitigating dimension beyond the impact it has on the ability to act deliberately. Id. As Chief Judge Jones correctly observes, because Nelson filed his federal habeas petition after the enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), the provisions of that law govern the scope of our review. Specifically, 28 U.S.C. § 2254(d)(1) (1994 ed., Supp. V) prohibits a federal court from granting an application for a writ of habe-as corpus with respect to a claim adjudicated on the merits in state court unless that adjudication “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” In Williams v. Taylor, 529 U.S. 362, 404, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000), the Court explained that the “contrary to” and “unreasonable application” clauses of § 2254(d)(1) have independent meaning. A state court decision will be “contrary to” clearly established Supreme Court precedent if the state court either “applies a rule that contradicts the governing law set forth in [Supreme Court] cases,” or “confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a result different from [Supreme Court] precedent.” Id. at 405-06, 120 S.Ct. 1495. A state court decision will be an “unreasonable application of’ the Supreme Court’s clearly established precedent if it “correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner’s case.” Id. at 407-08, 120 S.Ct. 1495; “[A] federal habeas court making the ‘unreasonable application’ inquiry should ask whether the state court’s application of clearly established federal law was objectively unreasonable.” Id. at 409, 109 S.Ct. 2934. Distinguishing between an unreasonable and an incorrect application of federal law, the Court clarified that even if the federal habeas court concludes that the state court decision applied clearly established federal law incorrectly, relief is appropriate only if that application is also objectively unreasonable. Id. at 410-11, 109 S.Ct. 2934. Nelson’s present Penry claim was adjudicated on the merits by the Texas Court of Criminal Appeals (CCA) on October 10, 2001. Thus, we must determine whether that adjudication “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” Because the CCA in that case denied habeas relief for the reasons found and recommended by the Texas district court, however, we must consider the district court’s opinion as well as the record upon which the Texas courts based their decisions. The meaning of the statutory phrase “clearly established Federal law, as determined by the Supreme Court of the United States” refers to “the holdings, as opposed to the dicta, of [Supreme Court] decisions as of the time of the relevant state-court decision.” Williams, 529 U.S. at 365, 120 S.Ct. 1495. Therefore, to determine whether the pertinent state-court adjudication of Nelson’s Penry claim “was contrary to ... clearly established Federal law, as determined by the Supreme Court of the United States,” or “involved an unreasonable application of ... clearly established Federal law, as determined by the Supreme Court of the United States” we are guided not only by Penry I but also by all other Supreme Court jurisprudence clearly established at the time of the CCA decision in this case. II. Overview Although I agree with Chief Judge Jones that we must ultimately affirm the denial of habeas relief to Nelson, I believe that our duty under AEDPA requires a more intense initial focus on the CCA’s decision, a more extensive search for the applicable federal law clearly established by the Supreme Court’s decisions, and a thorough multi-step application of that clearly established Supreme Court jurisprudence, rather than Fifth Circuit cases, to the evidence and record in the present case. Further, we cannot determine the firmness, clarity and meaning of the pertinent legal principles by simply reading a few of the Supreme Court’s opinions written just prior to the CCA’s decision of October 10, 2001. To understand fully the meaning of the Court’s language and holdings in capital punishment cases requires knowledge of the whole context and history of its post-Fwmcm death penalty jurisprudence. For example, the concept of relevant mitigating evidence is used throughout this field by the Court without detailed definition of those terms in most cases. But this does not necessarily prevent us from finding that the general meaning of relevant mitigating evidence in all cases was “established,” “clear” and commonly understood even before F.R.E. 401’s definition of “relevant evidence” was expressly endorsed in T.L.O. , McKoy, and Tennard. Nor must the Court re-explain the essential requisites of individualized sentencing in every capital case, or in respect to every state’s death penalty system, in order for those requisites to be generally applicable as clearly established federal law. Thus, the fundamental principles of selecting only the most reprehensible of murderers for the death penalty according to individual comparative assessments of culpability do not become less established because they are often taken for granted rather than expressly iterated in every case. Legal principles and standards so well understood as to have become implicit or elliptical are not obsolete or any less binding. For these reasons, it may be helpful in this and other Penry claim cases to identify separately the relevant principles and terms at issue and to determine the extent of the establishment and clarity of each at certain times in the death penalty jurisprudence, such as before and after Penry I (1989), before and after Penry II (June 4, 2001), and immediately before the CCA decision (October 10, 2001) in this case. This may also help us understand better the meaning of the Court’s opinions in those cases. For this purpose, I will first set forth a summary of my understanding of the current pertinent clearly established principles of law regarding the death penalty. Then, I will start at the beginning of the post-Furman era and proceed chronologically through the Court’s cases expounding those principles. Finally, of course, I will strive to arrive at the federal law clearly established by the Supreme Court at the time of the CCA’s decision on October 10, 2001, and apply that law to the instant case. III. Hypothesis of Principles of Clearly Established Federal Law I tentatively assume that, when the CCA denied Nelson habeas relief on his Penry claim on October 10, 2001, federal law clearly established by the Supreme Court required a state to (1) empower its capital sentencer to (a) give full consideration and effect to all of the defendant’s relevant mitigating evidence; (b) make an individualized assessment of the level of the defendant’s moral culpability or death-worthiness; and (c) select the appropriate sentence of either life or death for each convicted defendant based on that assessment in light of all of the relevant evidence in the case; and (2) to refrain from interfering with the capital sentencer’s proper use of those constitutionally protected powers. IV. Pre-Penry I The capital punishment prerequisites of individualized sentencing based on the offender’s level of culpability informed by consideration of all relevant mitigating evidence were established prior to Penry I. In the 1970’s and early 1980’s it was established that, because the death penalty is uniquely irrevocable, it must be reserved for the most morally depraved crimes committed by the most extremely culpable and deserving offenders, as determined by the capital sentencer after consideration of all of the defendant’s mitigating evidence in light of the entire record. See Roberts (Harry) v. Louisiana, 431 U.S. 633, 97 S.Ct. 1993, 52 L.Ed.2d 637 (1977); Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978); Bell v. Ohio, 438 U.S. 637, 98 S.Ct. 2977, 57 L.Ed.2d 1010 (1978); Green v. Georgia, 442 U.S. 95, 99 S.Ct. 2150, 60 L.Ed.2d 738 (1979); Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982) (all vacating death sentences where the sentencer did not consider all mitigating factors proffered by the defendant). In Woodson v. North Carolina, the Court’s plurality concluded that “in 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.” 428 U.S. 280, 304, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976). The mandatory death penalty statute in Woodson was held invalid because it permitted no consideration of “relevant facets of the character and record of the individual offender or the circumstances of the particular offense.” Id. The Court further held that “an individualized decision is essential in capital cases. The need for treating each defendant in a capital case with that degree of respect due the uniqueness of the individual is far more important than in noncapital cases.” Lockett v. Ohio, 438 U.S. 586, 605, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). These principles of individualized sentencing, viz., full consideration of all relevant mitigating evidence, assessment of each offender’s level of culpability, and sentence selection based on that assessment, recognized by the Woodson and Lockett pluralities were adopted and firmly established by subsequent Supreme Court majorities. A. Exempted Categories. In certain kinds of cases, the Court held that the principles underlying capital punishment sentencing required that whole categories of crimes and offenders be exempted from eligibility for the death penalty because they presented an insufficient level of moral culpability to warrant the most extreme form of punishment. Prior to Penny I, the Court thus exempted murderers whose crimes reflect only minimal or ordinary moral depravity; rapists of adult women; murderer-accomplices who lack a sufficiently culpable state of mind; and murderers who were under the age of 18 at the time of the crime. Subsequent to Penny I & II, the court applied the same principles to exempt mentally retarded persons and offenders who were under the age of 16 at the time of the crime. Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002); Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005). Even dissenters who disagreed with categorical exemptions often expressed support for the constitutional requirement that the capital sentencer be empowered and allowed to select only those for the death penalty who were sufficiently culpable based on an individualized assessment of the mitigating evidence and the circumstances of each case. This signifies a deep and abiding establishment of the principle of individualized capital sentencing on the basis of each offender’s degree of culpability and full consideration of mitigation evidence. B. Full consideration of all relevant mitigating evidence for the purpose of individualized assessment of culpability and sentence selection. In Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982), a majority of the Court applied Lockett to recognize that “justice ... requires ... that there be taken into account the circumstances of the offense together with the character and propensities of the offender” and reversed the death penalty because “the sentencer in capital cases must be permitted to consider any relevant mitigating factor” and the trial judge had erred in finding as a matter of law that he could not consider the mitigating evidence of Ed-dings’s violent family history. The Court observed that the common law has struggled with the problem of developing a capital punishment system that is “sensible to the uniqueness of the individual.” Id. at 110, 102 S.Ct. 869. V. Penry I A. Penry I clearly established or reaffirmed that a State must enable and allow its capital sentencer to consider and give effect to any mitigating evidence relevant to a defendant’s background and character or the circumstances of the crime. Thus, the special issues instruction as applied, because of the absence of an instruction that the jury could give that evidence effect by declining to impose the death penalty, was in conflict with the Eighth Amendment. The Supreme Court in Penry I in 1989 reaffirmed the clearly established principles that a capital sentencer must be empowered to individually assess the culpability and just desert of each defendant and individually determine the appropriate sentence for him based on all the relevant mitigating evidence. The Court held that: (1) at the time Penry’s conviction became final, it was clear from Lockett and Eddings that a State could not, consistent with the Eighth and Fourteenth Amendments, prevent the sentencer from considering and giving effect to evidence relevant to the defendant’s background or character or to the circumstances of the offense that mitigate against imposing the death penalty. 492 U.S. at 318, 109 S.Ct. 2934; (2) [t]he rule Penry [sought] — that when such mitigating evidence [of his mental retardation and abused childhood] is presented, Texas juries must ... be given jury instructions that make it possible for them to give effect to that mitigating evidence in determining whether the death penalty should be imposed- — is not a “new rule” under Teague because it is dictated by Eddings and Lockett. Id. at 318-19, 109 S.Ct. 2934; (3) “[underlying Lockett and Eddings is the principle that punishment should be directly related to the personal culpability of the criminal defendant,” Id. at 319, 109 S.Ct. 2934; (4) “[I]t is not enough simply to allow the defendant to present mitigating evidence to the sentencer. The sentencer must also be able to consider and give effect to that evidence in imposing sentence.” Id.; (5) “In order to ensure reliability in the determination that death is the appropriate punishment in a specific case, the jury must be able to consider and give effect to any mitigating evidence relevant to a defendant’s background and character or the circumstances of the crime.” Id. at 328, 109 S.Ct. 2934; and (6) therefore, “in the absence of instructions informing the jury that it could consider and give effect to the mitigating evidence of Penry’s mental retardation and abused [childhood] background by declining to impose the death penalty, ... the jury was not provided with a vehicle for expressing its reasoned moral response to that evidence in rendering its sentencing decision.” Id. at 328, 109 S.Ct. 2934. (internal quotations and citations omitted). B. The principle of relevance under Federal Rule of Evidence 401 applies in capital cases and cannot be distorted by the state so as to interfere with the sentencer’s full consideration and use of relevant evidence in culpability assessment and sentence selection. In McKoy v. North Carolina, 494 U.S. 433, 110 S.Ct. 1227, 108 L.Ed.2d 369 (1990) the Court held that a state’s capital sentencing scheme impermissibly limited jurors’ consideration of mitigating evidence in violation of the Eighth Amendment where it declared irrelevant mitigating circumstances not found unanimously. Furthermore, the Court stated that its holdings in Skipper v. South Carolina, 476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986), and Eddings, show that the mere declaration that evidence is “legally irrelevant” to mitigation cannot bar the consideration of that evidence if the sentencer could reasonably find that it warrants a sentence less than death. The state’s actions were held to impermissibly “distort[ ] the concept of relevance” because “[i]t is universally recognized that evidence, to be relevant to an inquiry, need not conclusively prove the ultimate fact in issue, but only have ‘any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.’ Fed. R. Ev. 401.” McKoy, 494 U.S. at 440, 110 S.Ct. 1227 (quoting T.L.O. 469 U.S. at 345, 105 S.Ct. 733 (1985)). Moreover, the Court made clear that “[t]he meaning of relevance is no different in the context of mitigating evidence introduced in a capital sentencing proceeding.” Id. C. States cannot limit the sentencer’s full consideration of relevant mitigation factors. Shortly after Penry I, well before the pertinent Texas CCA decision in this case, in Payne v. Tennessee, 501 U.S. 808, 824, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991), Chief Justice Rehnquist, writing for a six-Justice majority, declared that “States cannot limit the sentencer’s consideration of any relevant circumstance that could cause it to decline to impose the penalty. In this respect, the State cannot challenge the sentencer’s discretion, but must allow it to consider any relevant information offered by the defendant.” (citing McCleskey v. Kemp, 481 U.S. 279, 305-306, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987)). D. When there is a claim is that the challenged special issues instruction failed to enable and allow the jury to consider and give effect to relevant mitigating evidence, the proper inquiry is whether there is a reasonable likelihood that the jury has applied the instruction in a way that prevented the jury from giving consideration and effect to all of the defendant’s relevant mitigating evidence. Although a defendant need not establish that the jury was more likely than not to have been imper-missibly inhibited by the instruction, a capital sentencing proceeding does not violate the Eighth Amendment if there is only a possibility of such an inhibition. In Boyde v. California, 494 U.S. 370, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990) the Court held that where the claim is that a challenged instruction is ambiguous and therefore subject to erroneous interpretation, the proper inquiry is whether there is a reasonable likelihood that the jury has applied the instruction in a way that prevents the consideration of constitutionally relevant evidence. Although a defendant need not establish that the jury was more likely than not to have been impermissibly inhibited by the instruction, a capital sentencing proceeding does not violate the Eighth Amendment if there is only a possibility of such an inhibition. Id. A few years later, the Court in Johnson v. Texas, 509 U.S. 350, 367, 113 S.Ct. 2658, 125 L.Ed.2d 290 (1993), held that where the question is raised whether the Texas special issues allowed adequate consideration of the mitigating evidence of petitioner’s youth, “the standard against which we assess whether jury instructions satisfy the rule of Lockett and Eddings was set forth in Boyde v. California, 494 U.S. 370, 110 S.Ct. 1190, 108 L.Ed.2d 316[ ] (1990). There we held that a reviewing court must determine ‘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.’ Id. at 380, 110 S.Ct. 1190[]. Although the reasonable likelihood standard does not require that the defendant prove that it was more likely than not that the jury was prevented from giving effect to the evidence, the standard requires more than a mere possibility of such a bar.” Thus, the Court in Johnson acknowledged that the special issues instruction had caused a possible constitutional violation and adopted the Boyde reasonable likelihood test for the purpose of determining whether a violation had indeed occurred. Further, the Court in Johnson applied the Boyde test and concluded that there was not a reasonable likelihood that the instruction had prevented a full consideration of the relevant mitigating evidence of Johnson’s youth for the purpose of assessing his culpability. To support its conclusion the Court’s majority opinion undertook an extensive analysis of the evidence in that particular case and demonstrated to its own satisfaction that the jury’s mental process in considering the evidence for the purpose of answering the future dangerousness special issue was substantially the same as that of a jury which had considered the evidence for the purpose of assessing the defendant’s culpability and selecting the appropriate sentence. In essence, the Court’s majority indicated that the jury’s consideration of the mitigating evidence in answering the special issue mimicked or served as a proxy for a consideration of the evidence for the purposes of assessing the defendant’s culpability and selection of the appropriate sentence for him and his crime. For some jurists, this is a troublesome analysis or rationale, as evidenced by the strong dissent by four of the Justices. Therefore, it is important to note that whether the special issue adequately mimicked a comparative culpability analysis in Johnson is largely a factual inquiry based on the character and propensities of the defendant and the circumstances of the crime in that particular case. The holding or legal rule of decision in Johnson, which is controlling and applicable to the present case for purposes of AEDPA, was simply that when the special issues instruction raises the question of whether the jury was precluded from considering and giving effect to the defendant’s relevant mitigating evidence, the issue must be determined by applying the Boyde reasonable likelihood test. The Court’s subsequent straightforward application of the Boyde test in Pen-ry II without reference to Johnson or its extensive analysis of its facts corroborates this conclusion. E. States cannot preclude or constrain the selection of sentence. States must empower and allow their capital sentencers to select the sentence. Subsequent to Penry I but prior to the CCA decision in the present case, the Court in Buchanan v. Angelone, 522 U.S. 269, 276-77, 118 S.Ct. 757, 139 L.Ed.2d 702 (1998) reaffirmed the principle that a state must empower and allow its capital sentencer to select either the death penalty or life imprisonment according to an individualized assessment of culpability level based on all of the defendant’s relevant mitigating evidence. Buchanan declared that “[i]n the selection phase, [Supreme Court] cases have established that the sentencer may not be precluded from considering, and may not refuse to consider, any constitutionally relevant mitigating evidence.” Id. at 276, 118 S.Ct. 757. It also reaffirmed that states do not have an unhindered ability to create sentencing schemes as they see fit, and that to be constitutional they must not “preclude the jury from giving effect to any relevant mitigating evidence.” Id. The court also made clear that the appropriate standard for assessing the constitutionality of a jury instruction scheme 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.” Id. (quoting Boyde v. California, 494 U.S. 370, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990)). Finally, the Court distinguished Penry I from the facts of Buchanan, making clear that Penry I involved a Texas special issues scheme where the instructions “constrain[ed] the manner in which the jury was able to give effect to mitigation.” 522 U.S. at 277, 118 S.Ct. 757. VI. Penry II A. A Texas special issues jury instruction is unconstitutional if there is a reasonable likelihood it precluded the sentencer’s full consideration or use of relevant mitigating evidence to assess the defendant’s culpability or to select the appropriate sentence. The Court in Penry II, in June 2001, reaffirmed its decision in Penry I and many of the foregoing clearly established principles of law. The Court held that, despite the state trial court’s ineffectual attempt to fix the constitutional flaw pointed out in Penry I, the Texas special issues instruction still unconstitutionally prevented a sentencing jury from acting under the Eighth Amendment to individually assess the level of each offender’s culpability and to choose whether to impose or withhold the death penalty based on that assessment. The Court reaffirmed that when a defendant has introduced relevant mitigating evidence, it creates a potential violation of the Eighth Amendment for a state by use of a preclusive or constraining jury instruction to interfere with the capital sentencer’s giving full consideration and effect to that evidence by using it to make an individualized assessment of the offender’s culpability level and to select accordingly the appropriate sentence of death or life imprisonment for that defendant. The court made it clear, moreover, that it was enforcing its holding in Penry I which still meant the same thing it stood for in 1989. The Court held: Penry I did not hold that the mere mention of “mitigating circumstances” to a capital sentencing jury satisfies the Eighth Amendment. Nor does it stand for the proposition that it is constitutionally sufficient to inform the jury that it may “consider” mitigating circumstances in deciding the appropriate sentence. Rather, the key under Penry I is that the jury be able to “consider and give effect to [a defendant’s mitigating] evidence in imposing sentence.” 492 U.S. at 319, 109 S.Ct. 2934 (emphasis added). See also Johnson v. Texas, 509 U.S. 350, 381, 113 S.Ct. 2658, 125 L.Ed.2d 290 (1993) (O’Connor, J., dissenting) (“[A] sentencer [must] be allowed to give full consideration and full effect to mitigating circumstances” (emphasis in original)). For it is only when the jury is given a “vehicle for expressing its ‘reasoned moral response’ to that evidence in rendering its sentencing decision,” Penry I, 492 U.S. at 328, 109 S.Ct. 2934, that we can be sure that the jury “has treated the defendant as a ‘uniquely individual human bein[g]’ and has made a reliable determination that death is the appropriate sentence,” Id. at 319, 109 S.Ct. 2934 (quoting Woodson v. North Carolina, 428 U.S. 280, 304, 305, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976)). The Court in Penry II also reaffirmed and clearly established the requirement that, when the defendant introduces mitigating evidence relevant to the capital sen-tencer’s assessment of the culpability of the defendant and the selection of the appropriate sentence, and the State’s jury instruction may have precluded or constrained the sentencer’s selection, the reviewing court must apply the Boyde reasonable likelihood test to determine whether there was an Eighth Amendment violation. See Penny II, 532 U.S. at 800, 121 S.Ct. 1910. (“There is, at the very least, ‘a reasonable likelihood that the jury ... applied the challenged instruction in a way that prevented] the consideration’ of Penry’s mental retardation and childhood abuse. Boyde v. California, 494 U.S. 370, 380, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990). The supplemental instruction therefore provided an inadequate vehicle for the jury to make a reasoned moral response to Penry’s mitigating evidence.”). B. Because the Texas special issues instruction does not enable or permit the sentencer to select the appropriate sentence, the reasonable likelihood test must be applied by asking whether there is a reasonable likelihood that the instruction precluded the sentencer from considering relevant mitigating evidence or selecting the appropriate sentence. In Boyde v. California, 494 U.S. 370, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990) the Court held (1) that the Eighth Amendment requires that the jury be able to consider and give effect to all relevant mitigating evidence offered by petitioner, (citing Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978); Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982); and Penry I, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989)) and (2) when it is claimed that a jury instruction is ambiguous and therefore subject to an erroneous interpretation, the proper inquiry is whether there is a reasonable likelihood that the jury applied the challenged instruction in a way that prevented the consideration of constitutionally relevant evidence. Although a defendant need not establish that the jury was more likely than not to have been impermissibly inhibited by the instruction, a capital sentencing proceeding is not inconsistent with the Eighth Amendment if there is only a possibility of such an inhibition. In Boyde, in which the Court first formulated the reasonable likelihood test for use in determining whether an ambiguous instruction had impermissibly limited the jury’s consideration of the mitigating evidence, there was no contention that the instruction did not allow the senteneer to choose between life imprisonment and death as the appropriate sentence in the case; at issue in that case was only the antecedent question of whether the instruction had precluded the senteneer from fully considering all of the relevant mitigating evidence in assessing culpability. Thus, although the Court declared repeatedly throughout the opinion that the Eighth Amendment requires that the jury be able to give effect, as well as consider, all relevant evidence, in its final analysis the Court focused on the specific issue in the case by asking, in essence, whether there was a reasonable likelihood that the jury was prevented from fully considering relevant mitigating evidence. There was no need or reason for the Court to inquire into whether the senteneer was precluded from giving full effect to the evidence by selecting what it considered to be the appropriate sentence. Consequently, in a case in which the instruction arguably interfered directly with the sentencer’s selection of the sentence as well as with its consideration of the relevant mitigating evidence, it is self-evident that the reviewing court must apply the reasonable likelihood test to each alleged error, ie., it must ask whether there is a reasonable likelihood that the senteneer was precluded from (1) giving the evidence full consideration in assessing culpability or (2) giving the evidence full effect by selecting the sentence based on its assessment of culpability. Otherwise, its review of the assigned errors would not be complete and the defendant would have been unconstitutionally deprived of his right to have prejudicial error corrected on review. See Estelle v. McGuire, 502 U.S. 62, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991) (“In reviewing an ambiguous jury instruction ... we inquire ‘whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way’ that violates the Constitution.”). This reading of Chief Justice Rehnquist’s opinion in Boyde is fully corroborated by his opinion for the Court in Buchanan. In Buchanan, although the Court held that a state is not required to affirmatively instruct juries in a particular way on the manner in which mitigation evidence is to be considered, the Court also made clear that while the state may shape and structure the jury’s consideration of mitigation, it may not “preclude the jury from giving effect to any relevant mitigating evidence.” 522 U.S. at 276, 118 S.Ct. 757 (citing Johnson, 509 U.S. at 362, 113 S.Ct. 2658; Penry I, 492 U.S. at 326, 109 S.Ct. 2934; Franklin, 487 U.S. at 181, 108 S.Ct. 2320). “Our consistent concern has been that restrictions on the jury’s sentencing determination not preclude the jury from being able to give effect to mitigating evidence.” Id. And the Chief Justice clearly-contrasted Penry I as a case in which the Texas special issues constrained the manner in which the jury was able to give effect to the mitigation evidence by selecting the sentence. He stated: The jury instruction [in Boyde] did not violate those constitutional principles. The instruction did not foreclose the jury’s consideration of any mitigating evidence. By directing the jury to base its decision on “all the evidence,” the instruction afforded jurors an opportunity to consider mitigating evidence. The instruction informed the jurors that if they found the aggravating factor proved beyond a reasonable doubt then they “may fix” the penalty at death, but directed that if they believed that all the evidence justified a lesser sentence then they “shall” impose a life sentence. The jury was thus allowed to impose a life sentence even if it found the aggravating factor proved. Moreover, in contrast to the Texas special issues scheme in question in Penry, supra, at 326, 109 S.Ct, at 2951, the instructions here did not constrain the manner in which the jury was able to give effect to mitigation. Id. at 762 (footnote omitted)(emphasis added). Thus, Buchanan strongly reaffirmed the holding of Penry I that the Texas special issue jury instruction failed to provide a constitutionally adequate vehicle for jurors to both consider the relevant mitigating evidence by assessing the defendant’s culpability and give effect to that evidence by selecting the appropriate sentence for the defendant and his crime. VII. Analysis A. Texas Court of Criminal Appeals Decision On October 10, 2001, the Texas Court of Criminal Appeals denied Nelson relief on his post conviction habeas claim, adopting the findings of fact and conclusions of law and recommendation of the Texas trial court that relief be denied. The order of the state habeas trial court reflects, with respect to Nelson’s Penry claim, that Nelson contended that he was denied his constitutional rights under the Texas Constitution and the Eighth and Fourteenth Amendments because Article 37.071 V.A.C.C.P. (1985) failed to ensure the consideration of mitigating evidence by the jury on punishment in the absence of jury instructions as to how mitigating evidence should be considered in answering the special punishment issues. The state habeas trial court acknowledged that Nelson requested at trial that the court submit a special charge to the jury on mitigating evidence. The state habeas court acknowledged that in order for a death penalty procedure to meet the requirements of the Constitution of the United States, the death penalty procedure must allow the jury to consider all relevant mitigating evidence, citing Lockett v. Ohio; that where the jury is unable to give effect in their verdict to mitigating evidence presented by the defendant in a capital case, the death penalty procedure is unconstitutional as applied to the defendant; and that where mitigating evidence presented by the defendant is beyond the scope of the special issues and the jury is thus unable to give effect to their reasonable moral response to that evidence in their verdict, the death penalty is unconstitutional as applied to the defendant, citing Franklin v. Lynaugh, 487 U.S. 164, 108 S.Ct. 2320, 101 L.Ed.2d 155 (1988); Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989). The state habeas trial court concluded that a jury is able to give effect to mitigating evidence of acts of kindness, compassion, and love through the special issue of whether there is a probability that the defendant would commit future acts of criminal violence, and thus such evidence is not beyond the scope of the special issues, citing only state cases; likewise, the court held that evidence that Nelson was a good worker; polite, kind, and helpful; respectful; and was someone who treated children well was not beyond the scope of the future violence special issue, and no additional instruction was needed, citing a state case. The court further concluded that evidence that Nelson was a hard worker who loses control only under the influence of alcohol and controlled substances does not reduce blameworthiness and appears to be more aggravating then mitigating, with no citation of authority; the court noted that the trial court had instructed the jury to consider and give effect in answering each issue to your evaluation of all of the evidence and concluded that the jury charge and the special issues allowed the jury to give effect to all mitigating evidence in their answers including intoxication at the time of the offense, citing state cases; the court cited state court authority that voluntary intoxication has no mitigating significance beyond the scope of the special issues. Nelson demonstrates from the record, however, that he introduced mitigating evidence he summarizes as follows: ... Dr. Hickman, the psychiatrist retained by petitioner, testified that he spent approximately six hours evaluating and testing petitioner. He testified that petitioner suffers from alcohol and cocaine addiction and has since the age of thirteen years. There is a realistic possibility that petitioner suffers from brain damage. Finally, Dr. Hickman testified that petitioner suffers from a Borderline Personality Disorder. According to Dr. Hickman, petitioner .would function normally for seventy-five or eighty percent of the time, but will exhibit symptoms of the mental disorder at other times. Because of the mental illness, petitioner will “periodically go through an outburst of feelings which can become very violent, become very destructive. Not to others, mostly to themselves.” Dr. Hickman testified this mental illness often renders a person unable to process how they are feeling and leads to drinking arid drug behavior. In other words, this illness impacts on an individual’s ability to1 control their own impulses. Untreated, petitioner’s illness has many dangers. But Dr. Hickman testified that petitioner’s illness is treatable. In fact, Dr. Hickman suggested petitioner be treated for his alcohol and cocaine addiction in conjunction with the treatment for Borderline Personality Disorder. According to Dr. Hickman, if one problem is cured, the chances are improved for curing the other problem. Dr. Hickman recommended that petitioner receive incarceration and psychotherapy to learn to identify and process emotions. He further believes petitioner treatment will require medication. If petitioner is provided this treatment and circumstances, Dr. Hickman stated that the likelihood of future violent behavior “goes way, way down, if not eliminated.” Petitioner’s father testified that petitioner’s mother did not accept him since his birth. Apparently she wanted a girl and was angry because petitioner was male. Petitioner attended several different schools. After his mother and father divorced and petitioner never completed school. His mother refused to take him with her. Petitioner later had a child in an unwedded relationship, but has been unable to maintain a relationship with his own child. Petitioner later became addicted to cocaine and alcohol. His father and family worked to help petitioner get' past his drug addiction and petitioner’s father thought they had done so- Indeed he was intent on helping petitioner with his alcohol addiction. Before this offense petitioner was never convicted of a felony. On the day this occurred petitioner was drinking. His father knew petitioner was drinking heavily and was intoxicated. He also appeared to have relapsed and using cocaine. Mr. Nelson observed petitioner prior to his statements and thought petitioner’s intoxication was obvious. The State admits that Nelson introduced mitigating evidence summarized as follows: (1) Nelson was rejected by his mother. (2) Nelson abused drugs and alcohol. (3) Nelson has troubled relationships with his brother and with women. Nelson had an