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ahoj! i am jakub
currently studying
at charles university in prague
i contemplate, design, code
& drink green tea
Introduction
Clients
- Reader's Digest
- htmlfactory.cz
- VIZIONET.CZ
- VIZUS.CZ
- Radek Medal
- Jan-Fiala.cz
Contact
jakubferenc(at)me.com
+420 777 019 110


Members: Bonnie Thompson, Sean Abbey, Matthew Chilcott and Nando Retallick-Boundey.
GitHub Names:
Bonnie Thompson: BonnieThompson
Sean Abbey: seanabbey
Mattew Chilcott: MatthewChilcott and Chilcott
Nando Retallick-Boundey: NandoRetallick-Boundey
The Great Barrier Reef Orchestra aims to attract more members, sponsors and donors as well as more views on their website. They also want to increase their target audeince range to one similar to that of members in their Orchestra meaning ages roughly 13-73 years old.
Brief details of who did what
None
Pluses: Everyone in the group helped eachother and contributed to the overall assignment. All members have enjoyed the process and working together to complete the final product.
Minuses: Some of the pages weren't completed till quite close to the due date which added stress and shows that an earlier start in the project may have been required. There were some disagreements although not many and were resolved quickly.
Interesting: It was interesting to work in a group with each member having different ways to contribute (e.g. Someone good with design and someone good with CSS). This meant everyone in the group had something to contribute as well as learn from the other members. The lesson of better time-management was learnt as well as new ways to manipulate CSS and HTML.


ROCKETMAN
A Film Review by James Berardinelli
RATING (0 TO 10): 3.5 Alternative Scale: *1/2 out of ****
United States, 1997 U.S. Release Date: 10/10/97 (wide) Running Length: 1:32 MPAA Classification: PG (Flatulence) Theatrical Aspect Ratio: 1.85:1
Cast: Harland Williams, Jessica Lundy, William Sadler, Jeffrey DeMunn, Beau Bridges, Peter Onorati Director: Stuart Gillard Producers: Eric L. Gold Screenplay: Greg Erb and Craig Mazin Cinematography: Steven Poster Music: Michael Tavera U.S. Distributor: Walt Disney Pictures
What do you get if you cross Pauly Shore, Adam Sandler, and PeeWee Herman? The answer is Harland Williams, one of the most annoying "comic" actors to arrive on the scene since Jim Carrey. And, since Williams is in almost every scene of Walt Disney's newest travesty, ROCKETMAN, it makes the thinly-written film that much harder to take. Sad to say, but the enjoyable-yet-anemic GEORGE OF THE JUNGLE remains the Mouse's best live action offering of the year, and this cinematic scrap doesn't come close.
Williams plays astronaut Fred Randall, the most inept candidate ever to undergo NASA training. And he isn't targeted for just any mission: he's about to become one quarter of the four-member team scheduled to make the first manned flight to Mars. His fellow space travelers include two shuttle veterans, Mission Commander Overbeck (William Sadler) and Julie Ford (Jessica Lundy), and a chimpanzee named Ulysses (who is actually more appealing and charismatic than any of the human stars). Randall is only on the team because of his intimate knowledge of the landing pod guidance system (he designed the software). Without him, the mission would be delayed at least two years, and the ambitious flight director (Jeffrey DeMunn) isn't willing to wait that long. So, ready or not, Randall becomes the first moron in space.
ROCKETMAN's attempts at humor are predictably juvenile, consisting mainly of the usual PG-rated cartoonish slapstick and mild flatulence. One of the "high" points comes when Randall, wandering around on the surface of Mars in a space suit, has a sudden gas attack. His suit balloons up until he looks like the Michelin Man, and Overbeck, who's using the same oxygen supply, nearly dies from the odor. If that's your brand of humor, you probably won't find ROCKETMAN as unfunny as I did.
There are a few positive things I can say about this film (although, admittedly, it's a stretch). ROCKETMAN features the most unique exclamation found in any movie this year: "Sweet Alaskan Asparagus Tips!" There's also a surprisingly subtle bit of humor involving a BBC reporter who's too polite to be noticed at a press conference. On the acting front, although no one really stands out, Jessica Lundy is pleasant enough and William Sadler avoids chewing on the scenery. Beau Bridges does his best not to look embarrassed. And, despite the predictability of his antics, the chimp is pretty good.
In the end, there's not much to say about ROCKETMAN. Distilled to its basic essence, it's stale, lame, and utterly predictable -- and those are its good qualities. (Note: predictability can be okay if the movie is entertaining, which this isn't.) When it comes to scientific accuracy, this film isn't going to challenge CONTACT, or even INDEPENDENCE DAY, for that matter. The special effects are of the K- Mart variety. (The surface of Mars looked a lot more impressive in TOTAL RECALL.) Essentially, the movie follows the basic plot-by-numbers scripting technique that forms the basis of most Disney-generated productions, only this time, instead of getting an appealing actor like Sinbad for the lead, they've chosen the irritating Williams. Younger kids may actually like ROCKETMAN, but that's not a big surprise. Disney knows the target audience for this sort of offering: unsophisticated, undiscriminating, willing to laugh at almost anything, and fond of chimps. While that's not a group profile to envy, this picture will probably still make a profit.
Copyright 1997 James Berardinelli
- James Berardinelli e-mail<EMAIL_ADDRESS>The website has moved!! The new address is: http://movie-reviews.colossus.net/
"The cinema is not an art which films life: the cinema is something between art and life. Unlike painting and literature, the cinema both gives to life and takes from it..."
- Jean-Luc Godard
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I am currently a fourth year Computer Science student at UC Davis. My interests include web developing and (ios and android) app developing. I am skilled in multiple programming languages such as C++, Javascript, Python, Java, Swift, and marked up languages such as HTML5, CSS, and Sass. I also have experience in web framework such as react, Vue, GraphQL, simpleLight box, and bootstrap. I also familiar with data-base such mongoDB, mySQL, Local Storage. To keep myself updated with latest technical advancements, I like to spend my free time reading up on new web framework and learning new programming languages.


The State claims that the Fifth Circuits Penry I jurisprudence is not at issue in this case. Brief for Respondent 35, n. 21; Tr. of Oral Arg. 33. To the contrary, that jurisprudence is directly at issue because the Fifth Circuit denied Tennard relief on the ground that he did not satisfy the requirements imposed by its constitutional relevance test. As we have explained, the Fifth Circuits screening test has no basis in our precedents and, indeed, is inconsistent with the standard we have adopted for relevance in the capital sentencing context. We therefore hold that the Fifth Circuit assessed Tennards Penry claim under an improper legal standard. Cf. Miller-El v. Cockrell, 537 U. S., at 341 (holding, on certiorari review of the denial of a COA, that the Fifth Circuit had applied an incorrect standard by improperly merging the requirements of two statutory sections).
C
We turn to the analysis the Fifth Circuit should have conducted: Has Tennard demonstrate[d] that reasonable jurists would find the district courts assessment of the constitutional claims debatable or wrong? Slack v. McDaniel , 529 U. S., at 484. We conclude that he has.
Reasonable jurists could conclude that the low IQ evidence Tennard presented was relevant mitigating evidence. Evidence of significantly impaired intellectual functioning is obviously evidence that might serve as a basis for a sentence less than death, Skipper , 476 U. S., at 5; see also, e.g., Wiggins v. Smith, 539 U. S. 510, 535 (2003) (observing, with respect to individual with IQ of 79, that Wiggins[] … diminished mental capacitie[s] further augment his mitigation case); Burger v. Kemp, 483 U. S. 776 n. 7 (1987) (noting that petitioner had an IQ of 82 and functioned at the level of a 12-year-old child, and later that [i]n light of petitioners youth at the time of the offense, … testimony that his mental and emotional development were at a level several years below his chronological age could not have been excluded by the state court (quoting Eddings , 455 U. S., at 116)).
Reasonable jurists also could conclude that the Texas Court of Criminal Appeals application of Penry to the facts of Tennards case was unreasonable. The relationship between the special issues and Tennards low IQ evidence has the same essential features as the relationship between the special issues and Penrys mental retardation evidence. Impaired intellectual functioning has mitigating dimension beyond the impact it has on the individuals ability to act deliberately. See Penry I , 492 U. S., at 322. A reasonable jurist could conclude that the jury might well have given Tennards low IQ evidence aggravating effect in considering his future dangerousness, not only as a matter of probable inference from the evidence but also because the prosecutor told them to do so: [W]hether he has a low IQ or not is not really the issue. Because the legislature, in asking you to address that question, the reasons why he became a danger are not really relevant. The fact that he is a danger, that the evidence shows hes a danger, is the criteria to use in answering that question. App 60. Indeed, the prosecutors comments pressed exactly the most problematic interpretation of the special issues, suggesting that Tennards low IQ was irrelevant in mitigation, but relevant to the question whether he posed a future danger.
* * *
We hold that the Fifth Circuits uniquely severe permanent handicap and nexus tests are incorrect, and we reject them. We hold that reasonable jurists would find debatable or wrong the District Courts disposition of Tennards low-IQ-based Penry claim, and that Tennard is therefore entitled to a certificate of appealability. The judgment of the United States Court of Appeals for the Fifth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
* * The Fifth Circuit stated that a majority of the Court of Criminal Appeals found no evidence in this record that [Tennard] is mentally retarded. 284 F. 3d, at 596597. As described above, however, that was the conclusion of a four-judge plurality; the narrowest and thus controlling opinion on this point, correctly described by the Fifth Circuit as conclud[ing] that there was not enough evidence of mental retardation in the record to support Tennards claim, id., at 596, n. 5 (emphasis added), is Judge Meyers concurring opinion.
Dissent
ROBERT JAMES TENNARD, PETITIONER
v.
DOUG
DRETKE, DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, CORRECTIONAL
INSTITUTIONS DIVISION
Chief Justice Rehnquist , dissenting.
A certificate of appealability may only issue if the applicant has made a substantial showing of the denial of a constitutional right, 28 U. S. C. §2253(c)(2). Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy §2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district courts assessment of the constitutional claims debatable or wrong. Slack v. McDaniel, 529 U. S. 473, 484 (2000) . Because I believe that reasonable jurists would not find the District Courts assessment of the constitutional claims debatable or wrong , I dissent.
The District Court conducted the proper inquiry by examining whether Tennards evidence of low intelligence was within the effective reach of the jury. App. 128 (quoting Johnson v. Texas, 509 U. S. 350, 375 (1993) ). And the District Court came to the correct result; that is, the special issues allowed the jury to give some mitigating effect to Tennards evidence of low intelligence. Id. , at 369; Graham v. Collins , 506 U. S. 461, 475 (1993) .
In Jurek v. Texas, 428 U. S. 262 (1976) , this Court held that the Texas special issues system, as a general matter, is constitutional. The special issues system guides the jurys consideration of mitigating evidence at sentencing. We have stated:
Although [ Lockett v. Ohio, 438 U. S. 586 (1978) ,] and [ Eddings v. Oklahoma, 455 U. S. 104 (1982) ,] prevent a State from placing relevant mitigating evidence beyond the effective reach of the sentencer, Graham , supra , at 475, those cases and others in that decisional line do not bar a State from guiding the sentencers consideration of mitigating evidence. Indeed, we have held that there is no … constitutional requirement of unfettered sentencing discretion in the jury, and States are free to structure and shape consideration of mitigating evidence in an effort to achieve a more rational and equitable administration of the death penalty. Boyde v. California, 494 U. S. 370, 377 (1990) (quoting Franklin v. Lynaugh, 487 U. S. 164, 181 (1988) (plurality opinion)). Johnson , supra , at 362.
In Penry v. Lynaugh, 492 U. S. 302 (1989) (Penry I) , the Court concluded that the Texas special issues were too limited to give effect to Penrys mitigating evidence of his mental retardation and severe childhood abuse. But we have noted that Penry I did not effec[t] a sea change in this Courts view of the constitutionality of the former Texas death penalty statute, Graham , supra , at 474. Tennards evidence of low intelligence simply does not present the same difficulty that Penrys evidence did.
There is no dispute that Tennards low intelligence is a relevant mitigating circumstance, and that the sentencing jury must be allowed to consider that mitigating evidence. See, e.g., Eddings v. Oklahoma , 455 U. S. 104, 110 (1982) ( [T]he sentencer … [may] not be precluded from considering, as a mitigating factor, any aspect of a defendants character or record and any of the circumstances of the offense (emphasis deleted) (quoting Lockett v. Ohio , 438 U. S. 586, 604 (1978) )). But the Constitution does not require that a jury be able to give effect to mitigating evidence in every conceivable manner in which the evidence may be relevant. Johnson , supra , at 372. The only question in this case is whether reasonable jurists would find the District Courts assessment that Tennards evidence of low intelligence was within the effective reach of the jury via the Texas special issues debatable or wrong.
The Court concludes that [t]he relationship between the special issues and Tennards low IQ evidence has the same essential features as the relationship between the special issues and Penrys mental retardation evidence. Ante , at 14. I disagree. The first special issue asked whether Tennard had caused the death of the victim deliberately and with the reasonable expectation that the death of the deceased or another would result. Ante , at 2. As the Court of Criminal Appeals of Texas noted and the District Court agreed, the mitigating evidence of Tennards low intelligence could be given effect by the jury through this deliberateness special issue. It does not follow from the Courts conclusion in Penry I that mental retardation had relevance to Penrys moral culpability beyond the scope of the deliberateness special issue that evidence of low intelligence has the same relevance. And, after Johnson and Graham , it is clear that the question is simply whether the jury could give some effect to the mitigating evidence through the special issues. Johnson , supra , at 369 (rejecting the petitioners claim that a special instruction was necessary because his evidence of youth had relevance outside the special issue framework); Graham , supra , at 476477 ([R]eading Penry [I] as petitioner urgesand thereby holding that a defendant is entitled to special instructions whenever he can offer mitigating evidence that has some arguable relevance beyond the special issueswould be to require in all cases that a fourth special issue be put to the jury: Does any mitigating evidence before you, whether or not relevant to the [other special issues], lead you to believe that the death penalty should not be imposed? The [ Franklin v. Lynaugh, 487 U. S. 164 (1988) ], plurality rejected precisely this contention, finding it irreconcilable with the Courts holding in Jurek, [487 U. S., at 180, n. 10], and we affirm that conclusion today.)
The second special issue asked [i]s there a probability that the defendant … would commit criminal acts of violence that would constitute a continuing threat to society? Ante, at 2. Here, too, this case is very different from Penry I , where there was expert medical testimony that Penrys condition prevented him from learning from experience. 492 U. S., at 308309. Here, no such evidence was presented. Given the evidence, the jury could have concluded that low intelligence meant that Tennard is a slow learner, but with the proper instruction, he could conform his behavior to social norms. It also could have concluded, as the Court of Criminal Appeals of Texas noted, that Tennard was a follower rather than a leader, App. 91, and that he again could conform his behavior in the proper environment. In either case contrary to Penry I the evidence could be given mitigating effect in the second special issue. In short, low intelligence is not the same as mental retardation and does not necessarily create the Penry I two-edged sword. 492 U. S., at 324. The two should not be summarily bracketed together.
Because I do not think that reasonable jurists would disagree with the District Courts conclusion that the jury in this case had the ability to give mitigating effect to Tennards evidence of low intelligence through the first and second special issues, I dissent.
Dissent
ROBERT JAMES TENNARD, PETITIONER
v.
DOUG
DRETKE, DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, CORRECTIONAL
INSTITUTIONS DIVISION
Chief Justice Rehnquist , dissenting.
A certificate of appealability may only issue if the applicant has made a substantial showing of the denial of a constitutional right, 28 U. S. C. §2253(c)(2). Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy §2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district courts assessment of the constitutional claims debatable or wrong. Slack v. McDaniel, 529 U. S. 473, 484 (2000) . Because I believe that reasonable jurists would not find the District Courts assessment of the constitutional claims debatable or wrong , I dissent.
The District Court conducted the proper inquiry by examining whether Tennards evidence of low intelligence was within the effective reach of the jury. App. 128 (quoting Johnson v. Texas, 509 U. S. 350, 375 (1993) ). And the District Court came to the correct result; that is, the special issues allowed the jury to give some mitigating effect to Tennards evidence of low intelligence. Id. , at 369; Graham v. Collins , 506 U. S. 461, 475 (1993) .
In Jurek v. Texas, 428 U. S. 262 (1976) , this Court held that the Texas special issues system, as a general matter, is constitutional. The special issues system guides the jurys consideration of mitigating evidence at sentencing. We have stated:
Although [ Lockett v. Ohio, 438 U. S. 586 (1978) ,] and [ Eddings v. Oklahoma, 455 U. S. 104 (1982) ,] prevent a State from placing relevant mitigating evidence beyond the effective reach of the sentencer, Graham , supra , at 475, those cases and others in that decisional line do not bar a State from guiding the sentencers consideration of mitigating evidence. Indeed, we have held that there is no … constitutional requirement of unfettered sentencing discretion in the jury, and States are free to structure and shape consideration of mitigating evidence in an effort to achieve a more rational and equitable administration of the death penalty. Boyde v. California, 494 U. S. 370, 377 (1990) (quoting Franklin v. Lynaugh, 487 U. S. 164, 181 (1988) (plurality opinion)). Johnson , supra , at 362.
In Penry v. Lynaugh, 492 U. S. 302 (1989) (Penry I) , the Court concluded that the Texas special issues were too limited to give effect to Penrys mitigating evidence of his mental retardation and severe childhood abuse. But we have noted that Penry I did not effec[t] a sea change in this Courts view of the constitutionality of the former Texas death penalty statute, Graham , supra , at 474. Tennards evidence of low intelligence simply does not present the same difficulty that Penrys evidence did.
There is no dispute that Tennards low intelligence is a relevant mitigating circumstance, and that the sentencing jury must be allowed to consider that mitigating evidence. See, e.g., Eddings v. Oklahoma , 455 U. S. 104, 110 (1982) ( [T]he sentencer … [may] not be precluded from considering, as a mitigating factor, any aspect of a defendants character or record and any of the circumstances of the offense (emphasis deleted) (quoting Lockett v. Ohio , 438 U. S. 586, 604 (1978) )). But the Constitution does not require that a jury be able to give effect to mitigating evidence in every conceivable manner in which the evidence may be relevant. Johnson , supra , at 372. The only question in this case is whether reasonable jurists would find the District Courts assessment that Tennards evidence of low intelligence was within the effective reach of the jury via the Texas special issues debatable or wrong.
The Court concludes that [t]he relationship between the special issues and Tennards low IQ evidence has the same essential features as the relationship between the special issues and Penrys mental retardation evidence. Ante , at 14. I disagree. The first special issue asked whether Tennard had caused the death of the victim deliberately and with the reasonable expectation that the death of the deceased or another would result. Ante , at 2. As the Court of Criminal Appeals of Texas noted and the District Court agreed, the mitigating evidence of Tennards low intelligence could be given effect by the jury through this deliberateness special issue. It does not follow from the Courts conclusion in Penry I that mental retardation had relevance to Penrys moral culpability beyond the scope of the deliberateness special issue that evidence of low intelligence has the same relevance. And, after Johnson and Graham , it is clear that the question is simply whether the jury could give some effect to the mitigating evidence through the special issues. Johnson , supra , at 369 (rejecting the petitioners claim that a special instruction was necessary because his evidence of youth had relevance outside the special issue framework); Graham , supra , at 476477 ([R]eading Penry [I] as petitioner urgesand thereby holding that a defendant is entitled to special instructions whenever he can offer mitigating evidence that has some arguable relevance beyond the special issueswould be to require in all cases that a fourth special issue be put to the jury: Does any mitigating evidence before you, whether or not relevant to the [other special issues], lead you to believe that the death penalty should not be imposed? The [ Franklin v. Lynaugh, 487 U. S. 164 (1988) ], plurality rejected precisely this contention, finding it irreconcilable with the Courts holding in Jurek, [487 U. S., at 180, n. 10], and we affirm that conclusion today.)
The second special issue asked [i]s there a probability that the defendant … would commit criminal acts of violence that would constitute a continuing threat to society? Ante, at 2. Here, too, this case is very different from Penry I , where there was expert medical testimony that Penrys condition prevented him from learning from experience. 492 U. S., at 308309. Here, no such evidence was presented. Given the evidence, the jury could have concluded that low intelligence meant that Tennard is a slow learner, but with the proper instruction, he could conform his behavior to social norms. It also could have concluded, as the Court of Criminal Appeals of Texas noted, that Tennard was a follower rather than a leader, App. 91, and that he again could conform his behavior in the proper environment. In either case contrary to Penry I the evidence could be given mitigating effect in the second special issue. In short, low intelligence is not the same as mental retardation and does not necessarily create the Penry I two-edged sword. 492 U. S., at 324. The two should not be summarily bracketed together.
Because I do not think that reasonable jurists would disagree with the District Courts conclusion that the jury in this case had the ability to give mitigating effect to Tennards evidence of low intelligence through the first and second special issues, I dissent.
Dissent
ROBERT JAMES TENNARD, PETITIONER
v.
DOUG
DRETKE, DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, CORRECTIONAL
INSTITUTIONS DIVISION
Chief Justice Rehnquist , dissenting.
A certificate of appealability may only issue if the applicant has made a substantial showing of the denial of a constitutional right, 28 U. S. C. §2253(c)(2). Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy §2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district courts assessment of the constitutional claims debatable or wrong. Slack v. McDaniel, 529 U. S. 473, 484 (2000) . Because I believe that reasonable jurists would not find the District Courts assessment of the constitutional claims debatable or wrong , I dissent.
The District Court conducted the proper inquiry by examining whether Tennards evidence of low intelligence was within the effective reach of the jury. App. 128 (quoting Johnson v. Texas, 509 U. S. 350, 375 (1993) ). And the District Court came to the correct result; that is, the special issues allowed the jury to give some mitigating effect to Tennards evidence of low intelligence. Id. , at 369; Graham v. Collins , 506 U. S. 461, 475 (1993) .
In Jurek v. Texas, 428 U. S. 262 (1976) , this Court held that the Texas special issues system, as a general matter, is constitutional. The special issues system guides the jurys consideration of mitigating evidence at sentencing. We have stated:
Although [ Lockett v. Ohio, 438 U. S. 586 (1978) ,] and [ Eddings v. Oklahoma, 455 U. S. 104 (1982) ,] prevent a State from placing relevant mitigating evidence beyond the effective reach of the sentencer, Graham , supra , at 475, those cases and others in that decisional line do not bar a State from guiding the sentencers consideration of mitigating evidence. Indeed, we have held that there is no … constitutional requirement of unfettered sentencing discretion in the jury, and States are free to structure and shape consideration of mitigating evidence in an effort to achieve a more rational and equitable administration of the death penalty. Boyde v. California, 494 U. S. 370, 377 (1990) (quoting Franklin v. Lynaugh, 487 U. S. 164, 181 (1988) (plurality opinion)). Johnson , supra , at 362.
In Penry v. Lynaugh, 492 U. S. 302 (1989) (Penry I) , the Court concluded that the Texas special issues were too limited to give effect to Penrys mitigating evidence of his mental retardation and severe childhood abuse. But we have noted that Penry I did not effec[t] a sea change in this Courts view of the constitutionality of the former Texas death penalty statute, Graham , supra , at 474. Tennards evidence of low intelligence simply does not present the same difficulty that Penrys evidence did.
There is no dispute that Tennards low intelligence is a relevant mitigating circumstance, and that the sentencing jury must be allowed to consider that mitigating evidence. See, e.g., Eddings v. Oklahoma , 455 U. S. 104, 110 (1982) ( [T]he sentencer … [may] not be precluded from considering, as a mitigating factor, any aspect of a defendants character or record and any of the circumstances of the offense (emphasis deleted) (quoting Lockett v. Ohio , 438 U. S. 586, 604 (1978) )). But the Constitution does not require that a jury be able to give effect to mitigating evidence in every conceivable manner in which the evidence may be relevant. Johnson , supra , at 372. The only question in this case is whether reasonable jurists would find the District Courts assessment that Tennards evidence of low intelligence was within the effective reach of the jury via the Texas special issues debatable or wrong.
The Court concludes that [t]he relationship between the special issues and Tennards low IQ evidence has the same essential features as the relationship between the special issues and Penrys mental retardation evidence. Ante , at 14. I disagree. The first special issue asked whether Tennard had caused the death of the victim deliberately and with the reasonable expectation that the death of the deceased or another would result. Ante , at 2. As the Court of Criminal Appeals of Texas noted and the District Court agreed, the mitigating evidence of Tennards low intelligence could be given effect by the jury through this deliberateness special issue. It does not follow from the Courts conclusion in Penry I that mental retardation had relevance to Penrys moral culpability beyond the scope of the deliberateness special issue that evidence of low intelligence has the same relevance. And, after Johnson and Graham , it is clear that the question is simply whether the jury could give some effect to the mitigating evidence through the special issues. Johnson , supra , at 369 (rejecting the petitioners claim that a special instruction was necessary because his evidence of youth had relevance outside the special issue framework); Graham , supra , at 476477 ([R]eading Penry [I] as petitioner urgesand thereby holding that a defendant is entitled to special instructions whenever he can offer mitigating evidence that has some arguable relevance beyond the special issueswould be to require in all cases that a fourth special issue be put to the jury: Does any mitigating evidence before you, whether or not relevant to the [other special issues], lead you to believe that the death penalty should not be imposed? The [ Franklin v. Lynaugh, 487 U. S. 164 (1988) ], plurality rejected precisely this contention, finding it irreconcilable with the Courts holding in Jurek, [487 U. S., at 180, n. 10], and we affirm that conclusion today.)
The second special issue asked [i]s there a probability that the defendant … would commit criminal acts of violence that would constitute a continuing threat to society? Ante, at 2. Here, too, this case is very different from Penry I , where there was expert medical testimony that Penrys condition prevented him from learning from experience. 492 U. S., at 308309. Here, no such evidence was presented. Given the evidence, the jury could have concluded that low intelligence meant that Tennard is a slow learner, but with the proper instruction, he could conform his behavior to social norms. It also could have concluded, as the Court of Criminal Appeals of Texas noted, that Tennard was a follower rather than a leader, App. 91, and that he again could conform his behavior in the proper environment. In either case contrary to Penry I the evidence could be given mitigating effect in the second special issue. In short, low intelligence is not the same as mental retardation and does not necessarily create the Penry I two-edged sword. 492 U. S., at 324. The two should not be summarily bracketed together.
Because I do not think that reasonable jurists would disagree with the District Courts conclusion that the jury in this case had the ability to give mitigating effect to Tennards evidence of low intelligence through the first and second special issues, I dissent.
Dissent
ROBERT JAMES TENNARD, PETITIONER
v.
DOUG
DRETKE, DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, CORRECTIONAL
INSTITUTIONS DIVISION
Chief Justice Rehnquist , dissenting.
A certificate of appealability may only issue if the applicant has made a substantial showing of the denial of a constitutional right, 28 U. S. C. §2253(c)(2). Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy §2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district courts assessment of the constitutional claims debatable or wrong. Slack v. McDaniel, 529 U. S. 473, 484 (2000) . Because I believe that reasonable jurists would not find the District Courts assessment of the constitutional claims debatable or wrong , I dissent.
The District Court conducted the proper inquiry by examining whether Tennards evidence of low intelligence was within the effective reach of the jury. App. 128 (quoting Johnson v. Texas, 509 U. S. 350, 375 (1993) ). And the District Court came to the correct result; that is, the special issues allowed the jury to give some mitigating effect to Tennards evidence of low intelligence. Id. , at 369; Graham v. Collins , 506 U. S. 461, 475 (1993) .
In Jurek v. Texas, 428 U. S. 262 (1976) , this Court held that the Texas special issues system, as a general matter, is constitutional. The special issues system guides the jurys consideration of mitigating evidence at sentencing. We have stated:
Although [ Lockett v. Ohio, 438 U. S. 586 (1978) ,] and [ Eddings v. Oklahoma, 455 U. S. 104 (1982) ,] prevent a State from placing relevant mitigating evidence beyond the effective reach of the sentencer, Graham , supra , at 475, those cases and others in that decisional line do not bar a State from guiding the sentencers consideration of mitigating evidence. Indeed, we have held that there is no … constitutional requirement of unfettered sentencing discretion in the jury, and States are free to structure and shape consideration of mitigating evidence in an effort to achieve a more rational and equitable administration of the death penalty. Boyde v. California, 494 U. S. 370, 377 (1990) (quoting Franklin v. Lynaugh, 487 U. S. 164, 181 (1988) (plurality opinion)). Johnson , supra , at 362.
In Penry v. Lynaugh, 492 U. S. 302 (1989) (Penry I) , the Court concluded that the Texas special issues were too limited to give effect to Penrys mitigating evidence of his mental retardation and severe childhood abuse. But we have noted that Penry I did not effec[t] a sea change in this Courts view of the constitutionality of the former Texas death penalty statute, Graham , supra , at 474. Tennards evidence of low intelligence simply does not present the same difficulty that Penrys evidence did.
There is no dispute that Tennards low intelligence is a relevant mitigating circumstance, and that the sentencing jury must be allowed to consider that mitigating evidence. See, e.g., Eddings v. Oklahoma , 455 U. S. 104, 110 (1982) ( [T]he sentencer … [may] not be precluded from considering, as a mitigating factor, any aspect of a defendants character or record and any of the circumstances of the offense (emphasis deleted) (quoting Lockett v. Ohio , 438 U. S. 586, 604 (1978) )). But the Constitution does not require that a jury be able to give effect to mitigating evidence in every conceivable manner in which the evidence may be relevant. Johnson , supra , at 372. The only question in this case is whether reasonable jurists would find the District Courts assessment that Tennards evidence of low intelligence was within the effective reach of the jury via the Texas special issues debatable or wrong.
The Court concludes that [t]he relationship between the special issues and Tennards low IQ evidence has the same essential features as the relationship between the special issues and Penrys mental retardation evidence. Ante , at 14. I disagree. The first special issue asked whether Tennard had caused the death of the victim deliberately and with the reasonable expectation that the death of the deceased or another would result. Ante , at 2. As the Court of Criminal Appeals of Texas noted and the District Court agreed, the mitigating evidence of Tennards low intelligence could be given effect by the jury through this deliberateness special issue. It does not follow from the Courts conclusion in Penry I that mental retardation had relevance to Penrys moral culpability beyond the scope of the deliberateness special issue that evidence of low intelligence has the same relevance. And, after Johnson and Graham , it is clear that the question is simply whether the jury could give some effect to the mitigating evidence through the special issues. Johnson , supra , at 369 (rejecting the petitioners claim that a special instruction was necessary because his evidence of youth had relevance outside the special issue framework); Graham , supra , at 476477 ([R]eading Penry [I] as petitioner urgesand thereby holding that a defendant is entitled to special instructions whenever he can offer mitigating evidence that has some arguable relevance beyond the special issueswould be to require in all cases that a fourth special issue be put to the jury: Does any mitigating evidence before you, whether or not relevant to the [other special issues], lead you to believe that the death penalty should not be imposed? The [ Franklin v. Lynaugh, 487 U. S. 164 (1988) ], plurality rejected precisely this contention, finding it irreconcilable with the Courts holding in Jurek, [487 U. S., at 180, n. 10], and we affirm that conclusion today.)
The second special issue asked [i]s there a probability that the defendant … would commit criminal acts of violence that would constitute a continuing threat to society? Ante, at 2. Here, too, this case is very different from Penry I , where there was expert medical testimony that Penrys condition prevented him from learning from experience. 492 U. S., at 308309. Here, no such evidence was presented. Given the evidence, the jury could have concluded that low intelligence meant that Tennard is a slow learner, but with the proper instruction, he could conform his behavior to social norms. It also could have concluded, as the Court of Criminal Appeals of Texas noted, that Tennard was a follower rather than a leader, App. 91, and that he again could conform his behavior in the proper environment. In either case contrary to Penry I the evidence could be given mitigating effect in the second special issue. In short, low intelligence is not the same as mental retardation and does not necessarily create the Penry I two-edged sword. 492 U. S., at 324. The two should not be summarily bracketed together.
Because I do not think that reasonable jurists would disagree with the District Courts conclusion that the jury in this case had the ability to give mitigating effect to Tennards evidence of low intelligence through the first and second special issues, I dissent.
Dissent
ROBERT JAMES TENNARD, PETITIONER
v.
DOUG
DRETKE, DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, CORRECTIONAL
INSTITUTIONS DIVISION
Chief Justice Rehnquist , dissenting.
A certificate of appealability may only issue if the applicant has made a substantial showing of the denial of a constitutional right, 28 U. S. C. §2253(c)(2). Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy §2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district courts assessment of the constitutional claims debatable or wrong. Slack v. McDaniel, 529 U. S. 473, 484 (2000) . Because I believe that reasonable jurists would not find the District Courts assessment of the constitutional claims debatable or wrong , I dissent.
The District Court conducted the proper inquiry by examining whether Tennards evidence of low intelligence was within the effective reach of the jury. App. 128 (quoting Johnson v. Texas, 509 U. S. 350, 375 (1993) ). And the District Court came to the correct result; that is, the special issues allowed the jury to give some mitigating effect to Tennards evidence of low intelligence. Id. , at 369; Graham v. Collins , 506 U. S. 461, 475 (1993) .
In Jurek v. Texas, 428 U. S. 262 (1976) , this Court held that the Texas special issues system, as a general matter, is constitutional. The special issues system guides the jurys consideration of mitigating evidence at sentencing. We have stated:
Although [ Lockett v. Ohio, 438 U. S. 586 (1978) ,] and [ Eddings v. Oklahoma, 455 U. S. 104 (1982) ,] prevent a State from placing relevant mitigating evidence beyond the effective reach of the sentencer, Graham , supra , at 475, those cases and others in that decisional line do not bar a State from guiding the sentencers consideration of mitigating evidence. Indeed, we have held that there is no … constitutional requirement of unfettered sentencing discretion in the jury, and States are free to structure and shape consideration of mitigating evidence in an effort to achieve a more rational and equitable administration of the death penalty. Boyde v. California, 494 U. S. 370, 377 (1990) (quoting Franklin v. Lynaugh, 487 U. S. 164, 181 (1988) (plurality opinion)). Johnson , supra , at 362.
In Penry v. Lynaugh, 492 U. S. 302 (1989) (Penry I) , the Court concluded that the Texas special issues were too limited to give effect to Penrys mitigating evidence of his mental retardation and severe childhood abuse. But we have noted that Penry I did not effec[t] a sea change in this Courts view of the constitutionality of the former Texas death penalty statute, Graham , supra , at 474. Tennards evidence of low intelligence simply does not present the same difficulty that Penrys evidence did.
There is no dispute that Tennards low intelligence is a relevant mitigating circumstance, and that the sentencing jury must be allowed to consider that mitigating evidence. See, e.g., Eddings v. Oklahoma , 455 U. S. 104, 110 (1982) ( [T]he sentencer … [may] not be precluded from considering, as a mitigating factor, any aspect of a defendants character or record and any of the circumstances of the offense (emphasis deleted) (quoting Lockett v. Ohio , 438 U. S. 586, 604 (1978) )). But the Constitution does not require that a jury be able to give effect to mitigating evidence in every conceivable manner in which the evidence may be relevant. Johnson , supra , at 372. The only question in this case is whether reasonable jurists would find the District Courts assessment that Tennards evidence of low intelligence was within the effective reach of the jury via the Texas special issues debatable or wrong.
The Court concludes that [t]he relationship between the special issues and Tennards low IQ evidence has the same essential features as the relationship between the special issues and Penrys mental retardation evidence. Ante , at 14. I disagree. The first special issue asked whether Tennard had caused the death of the victim deliberately and with the reasonable expectation that the death of the deceased or another would result. Ante , at 2. As the Court of Criminal Appeals of Texas noted and the District Court agreed, the mitigating evidence of Tennards low intelligence could be given effect by the jury through this deliberateness special issue. It does not follow from the Courts conclusion in Penry I that mental retardation had relevance to Penrys moral culpability beyond the scope of the deliberateness special issue that evidence of low intelligence has the same relevance. And, after Johnson and Graham , it is clear that the question is simply whether the jury could give some effect to the mitigating evidence through the special issues. Johnson , supra , at 369 (rejecting the petitioners claim that a special instruction was necessary because his evidence of youth had relevance outside the special issue framework); Graham , supra , at 476477 ([R]eading Penry [I] as petitioner urgesand thereby holding that a defendant is entitled to special instructions whenever he can offer mitigating evidence that has some arguable relevance beyond the special issueswould be to require in all cases that a fourth special issue be put to the jury: Does any mitigating evidence before you, whether or not relevant to the [other special issues], lead you to believe that the death penalty should not be imposed? The [ Franklin v. Lynaugh, 487 U. S. 164 (1988) ], plurality rejected precisely this contention, finding it irreconcilable with the Courts holding in Jurek, [487 U. S., at 180, n. 10], and we affirm that conclusion today.)
The second special issue asked [i]s there a probability that the defendant … would commit criminal acts of violence that would constitute a continuing threat to society? Ante, at 2. Here, too, this case is very different from Penry I , where there was expert medical testimony that Penrys condition prevented him from learning from experience. 492 U. S., at 308309. Here, no such evidence was presented. Given the evidence, the jury could have concluded that low intelligence meant that Tennard is a slow learner, but with the proper instruction, he could conform his behavior to social norms. It also could have concluded, as the Court of Criminal Appeals of Texas noted, that Tennard was a follower rather than a leader, App. 91, and that he again could conform his behavior in the proper environment. In either case contrary to Penry I the evidence could be given mitigating effect in the second special issue. In short, low intelligence is not the same as mental retardation and does not necessarily create the Penry I two-edged sword. 492 U. S., at 324. The two should not be summarily bracketed together.
Because I do not think that reasonable jurists would disagree with the District Courts conclusion that the jury in this case had the ability to give mitigating effect to Tennards evidence of low intelligence through the first and second special issues, I dissent.
Dissent
ROBERT JAMES TENNARD, PETITIONER
v.
DOUG
DRETKE, DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, CORRECTIONAL
INSTITUTIONS DIVISION
Chief Justice Rehnquist , dissenting.
A certificate of appealability may only issue if the applicant has made a substantial showing of the denial of a constitutional right, 28 U. S. C. §2253(c)(2). Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy §2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district courts assessment of the constitutional claims debatable or wrong. Slack v. McDaniel, 529 U. S. 473, 484 (2000) . Because I believe that reasonable jurists would not find the District Courts assessment of the constitutional claims debatable or wrong , I dissent.
The District Court conducted the proper inquiry by examining whether Tennards evidence of low intelligence was within the effective reach of the jury. App. 128 (quoting Johnson v. Texas, 509 U. S. 350, 375 (1993) ). And the District Court came to the correct result; that is, the special issues allowed the jury to give some mitigating effect to Tennards evidence of low intelligence. Id. , at 369; Graham v. Collins , 506 U. S. 461, 475 (1993) .
In Jurek v. Texas, 428 U. S. 262 (1976) , this Court held that the Texas special issues system, as a general matter, is constitutional. The special issues system guides the jurys consideration of mitigating evidence at sentencing. We have stated:
Although [ Lockett v. Ohio, 438 U. S. 586 (1978) ,] and [ Eddings v. Oklahoma, 455 U. S. 104 (1982) ,] prevent a State from placing relevant mitigating evidence beyond the effective reach of the sentencer, Graham , supra , at 475, those cases and others in that decisional line do not bar a State from guiding the sentencers consideration of mitigating evidence. Indeed, we have held that there is no … constitutional requirement of unfettered sentencing discretion in the jury, and States are free to structure and shape consideration of mitigating evidence in an effort to achieve a more rational and equitable administration of the death penalty. Boyde v. California, 494 U. S. 370, 377 (1990) (quoting Franklin v. Lynaugh, 487 U. S. 164, 181 (1988) (plurality opinion)). Johnson , supra , at 362.
In Penry v. Lynaugh, 492 U. S. 302 (1989) (Penry I) , the Court concluded that the Texas special issues were too limited to give effect to Penrys mitigating evidence of his mental retardation and severe childhood abuse. But we have noted that Penry I did not effec[t] a sea change in this Courts view of the constitutionality of the former Texas death penalty statute, Graham , supra , at 474. Tennards evidence of low intelligence simply does not present the same difficulty that Penrys evidence did.
There is no dispute that Tennards low intelligence is a relevant mitigating circumstance, and that the sentencing jury must be allowed to consider that mitigating evidence. See, e.g., Eddings v. Oklahoma , 455 U. S. 104, 110 (1982) ( [T]he sentencer … [may] not be precluded from considering, as a mitigating factor, any aspect of a defendants character or record and any of the circumstances of the offense (emphasis deleted) (quoting Lockett v. Ohio , 438 U. S. 586, 604 (1978) )). But the Constitution does not require that a jury be able to give effect to mitigating evidence in every conceivable manner in which the evidence may be relevant. Johnson , supra , at 372. The only question in this case is whether reasonable jurists would find the District Courts assessment that Tennards evidence of low intelligence was within the effective reach of the jury via the Texas special issues debatable or wrong.
The Court concludes that [t]he relationship between the special issues and Tennards low IQ evidence has the same essential features as the relationship between the special issues and Penrys mental retardation evidence. Ante , at 14. I disagree. The first special issue asked whether Tennard had caused the death of the victim deliberately and with the reasonable expectation that the death of the deceased or another would result. Ante , at 2. As the Court of Criminal Appeals of Texas noted and the District Court agreed, the mitigating evidence of Tennards low intelligence could be given effect by the jury through this deliberateness special issue. It does not follow from the Courts conclusion in Penry I that mental retardation had relevance to Penrys moral culpability beyond the scope of the deliberateness special issue that evidence of low intelligence has the same relevance. And, after Johnson and Graham , it is clear that the question is simply whether the jury could give some effect to the mitigating evidence through the special issues. Johnson , supra , at 369 (rejecting the petitioners claim that a special instruction was necessary because his evidence of youth had relevance outside the special issue framework); Graham , supra , at 476477 ([R]eading Penry [I] as petitioner urgesand thereby holding that a defendant is entitled to special instructions whenever he can offer mitigating evidence that has some arguable relevance beyond the special issueswould be to require in all cases that a fourth special issue be put to the jury: Does any mitigating evidence before you, whether or not relevant to the [other special issues], lead you to believe that the death penalty should not be imposed? The [ Franklin v. Lynaugh, 487 U. S. 164 (1988) ], plurality rejected precisely this contention, finding it irreconcilable with the Courts holding in Jurek, [487 U. S., at 180, n. 10], and we affirm that conclusion today.)
The second special issue asked [i]s there a probability that the defendant … would commit criminal acts of violence that would constitute a continuing threat to society? Ante, at 2. Here, too, this case is very different from Penry I , where there was expert medical testimony that Penrys condition prevented him from learning from experience. 492 U. S., at 308309. Here, no such evidence was presented. Given the evidence, the jury could have concluded that low intelligence meant that Tennard is a slow learner, but with the proper instruction, he could conform his behavior to social norms. It also could have concluded, as the Court of Criminal Appeals of Texas noted, that Tennard was a follower rather than a leader, App. 91, and that he again could conform his behavior in the proper environment. In either case contrary to Penry I the evidence could be given mitigating effect in the second special issue. In short, low intelligence is not the same as mental retardation and does not necessarily create the Penry I two-edged sword. 492 U. S., at 324. The two should not be summarily bracketed together.
Because I do not think that reasonable jurists would disagree with the District Courts conclusion that the jury in this case had the ability to give mitigating effect to Tennards evidence of low intelligence through the first and second special issues, I dissent.
Dissent
ROBERT JAMES TENNARD, PETITIONER
v.
DOUG
DRETKE, DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, CORRECTIONAL
INSTITUTIONS DIVISION
Chief Justice Rehnquist , dissenting.
A certificate of appealability may only issue if the applicant has made a substantial showing of the denial of a constitutional right, 28 U. S. C. §2253(c)(2). Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy §2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district courts assessment of the constitutional claims debatable or wrong. Slack v. McDaniel, 529 U. S. 473, 484 (2000) . Because I believe that reasonable jurists would not find the District Courts assessment of the constitutional claims debatable or wrong , I dissent.
The District Court conducted the proper inquiry by examining whether Tennards evidence of low intelligence was within the effective reach of the jury. App. 128 (quoting Johnson v. Texas, 509 U. S. 350, 375 (1993) ). And the District Court came to the correct result; that is, the special issues allowed the jury to give some mitigating effect to Tennards evidence of low intelligence. Id. , at 369; Graham v. Collins , 506 U. S. 461, 475 (1993) .
In Jurek v. Texas, 428 U. S. 262 (1976) , this Court held that the Texas special issues system, as a general matter, is constitutional. The special issues system guides the jurys consideration of mitigating evidence at sentencing. We have stated:
Although [ Lockett v. Ohio, 438 U. S. 586 (1978) ,] and [ Eddings v. Oklahoma, 455 U. S. 104 (1982) ,] prevent a State from placing relevant mitigating evidence beyond the effective reach of the sentencer, Graham , supra , at 475, those cases and others in that decisional line do not bar a State from guiding the sentencers consideration of mitigating evidence. Indeed, we have held that there is no … constitutional requirement of unfettered sentencing discretion in the jury, and States are free to structure and shape consideration of mitigating evidence in an effort to achieve a more rational and equitable administration of the death penalty. Boyde v. California, 494 U. S. 370, 377 (1990) (quoting Franklin v. Lynaugh, 487 U. S. 164, 181 (1988) (plurality opinion)). Johnson , supra , at 362.
In Penry v. Lynaugh, 492 U. S. 302 (1989) (Penry I) , the Court concluded that the Texas special issues were too limited to give effect to Penrys mitigating evidence of his mental retardation and severe childhood abuse. But we have noted that Penry I did not effec[t] a sea change in this Courts view of the constitutionality of the former Texas death penalty statute, Graham , supra , at 474. Tennards evidence of low intelligence simply does not present the same difficulty that Penrys evidence did.
There is no dispute that Tennards low intelligence is a relevant mitigating circumstance, and that the sentencing jury must be allowed to consider that mitigating evidence. See, e.g., Eddings v. Oklahoma , 455 U. S. 104, 110 (1982) ( [T]he sentencer … [may] not be precluded from considering, as a mitigating factor, any aspect of a defendants character or record and any of the circumstances of the offense (emphasis deleted) (quoting Lockett v. Ohio , 438 U. S. 586, 604 (1978) )). But the Constitution does not require that a jury be able to give effect to mitigating evidence in every conceivable manner in which the evidence may be relevant. Johnson , supra , at 372. The only question in this case is whether reasonable jurists would find the District Courts assessment that Tennards evidence of low intelligence was within the effective reach of the jury via the Texas special issues debatable or wrong.
The Court concludes that [t]he relationship between the special issues and Tennards low IQ evidence has the same essential features as the relationship between the special issues and Penrys mental retardation evidence. Ante , at 14. I disagree. The first special issue asked whether Tennard had caused the death of the victim deliberately and with the reasonable expectation that the death of the deceased or another would result. Ante , at 2. As the Court of Criminal Appeals of Texas noted and the District Court agreed, the mitigating evidence of Tennards low intelligence could be given effect by the jury through this deliberateness special issue. It does not follow from the Courts conclusion in Penry I that mental retardation had relevance to Penrys moral culpability beyond the scope of the deliberateness special issue that evidence of low intelligence has the same relevance. And, after Johnson and Graham , it is clear that the question is simply whether the jury could give some effect to the mitigating evidence through the special issues. Johnson , supra , at 369 (rejecting the petitioners claim that a special instruction was necessary because his evidence of youth had relevance outside the special issue framework); Graham , supra , at 476477 ([R]eading Penry [I] as petitioner urgesand thereby holding that a defendant is entitled to special instructions whenever he can offer mitigating evidence that has some arguable relevance beyond the special issueswould be to require in all cases that a fourth special issue be put to the jury: Does any mitigating evidence before you, whether or not relevant to the [other special issues], lead you to believe that the death penalty should not be imposed? The [ Franklin v. Lynaugh, 487 U. S. 164 (1988) ], plurality rejected precisely this contention, finding it irreconcilable with the Courts holding in Jurek, [487 U. S., at 180, n. 10], and we affirm that conclusion today.)
The second special issue asked [i]s there a probability that the defendant … would commit criminal acts of violence that would constitute a continuing threat to society? Ante, at 2. Here, too, this case is very different from Penry I , where there was expert medical testimony that Penrys condition prevented him from learning from experience. 492 U. S., at 308309. Here, no such evidence was presented. Given the evidence, the jury could have concluded that low intelligence meant that Tennard is a slow learner, but with the proper instruction, he could conform his behavior to social norms. It also could have concluded, as the Court of Criminal Appeals of Texas noted, that Tennard was a follower rather than a leader, App. 91, and that he again could conform his behavior in the proper environment. In either case contrary to Penry I the evidence could be given mitigating effect in the second special issue. In short, low intelligence is not the same as mental retardation and does not necessarily create the Penry I two-edged sword. 492 U. S., at 324. The two should not be summarily bracketed together.
Because I do not think that reasonable jurists would disagree with the District Courts conclusion that the jury in this case had the ability to give mitigating effect to Tennards evidence of low intelligence through the first and second special issues, I dissent.
Dissent
ROBERT JAMES TENNARD, PETITIONER
v.
DOUG
DRETKE, DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, CORRECTIONAL
INSTITUTIONS DIVISION
Chief Justice Rehnquist , dissenting.
A certificate of appealability may only issue if the applicant has made a substantial showing of the denial of a constitutional right, 28 U. S. C. §2253(c)(2). Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy §2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district courts assessment of the constitutional claims debatable or wrong. Slack v. McDaniel, 529 U. S. 473, 484 (2000) . Because I believe that reasonable jurists would not find the District Courts assessment of the constitutional claims debatable or wrong , I dissent.
The District Court conducted the proper inquiry by examining whether Tennards evidence of low intelligence was within the effective reach of the jury. App. 128 (quoting Johnson v. Texas, 509 U. S. 350, 375 (1993) ). And the District Court came to the correct result; that is, the special issues allowed the jury to give some mitigating effect to Tennards evidence of low intelligence. Id. , at 369; Graham v. Collins , 506 U. S. 461, 475 (1993) .
In Jurek v. Texas, 428 U. S. 262 (1976) , this Court held that the Texas special issues system, as a general matter, is constitutional. The special issues system guides the jurys consideration of mitigating evidence at sentencing. We have stated:
Although [ Lockett v. Ohio, 438 U. S. 586 (1978) ,] and [ Eddings v. Oklahoma, 455 U. S. 104 (1982) ,] prevent a State from placing relevant mitigating evidence beyond the effective reach of the sentencer, Graham , supra , at 475, those cases and others in that decisional line do not bar a State from guiding the sentencers consideration of mitigating evidence. Indeed, we have held that there is no … constitutional requirement of unfettered sentencing discretion in the jury, and States are free to structure and shape consideration of mitigating evidence in an effort to achieve a more rational and equitable administration of the death penalty. Boyde v. California, 494 U. S. 370, 377 (1990) (quoting Franklin v. Lynaugh, 487 U. S. 164, 181 (1988) (plurality opinion)). Johnson , supra , at 362.
In Penry v. Lynaugh, 492 U. S. 302 (1989) (Penry I) , the Court concluded that the Texas special issues were too limited to give effect to Penrys mitigating evidence of his mental retardation and severe childhood abuse. But we have noted that Penry I did not effec[t] a sea change in this Courts view of the constitutionality of the former Texas death penalty statute, Graham , supra , at 474. Tennards evidence of low intelligence simply does not present the same difficulty that Penrys evidence did.
There is no dispute that Tennards low intelligence is a relevant mitigating circumstance, and that the sentencing jury must be allowed to consider that mitigating evidence. See, e.g., Eddings v. Oklahoma , 455 U. S. 104, 110 (1982) ( [T]he sentencer … [may] not be precluded from considering, as a mitigating factor, any aspect of a defendants character or record and any of the circumstances of the offense (emphasis deleted) (quoting Lockett v. Ohio , 438 U. S. 586, 604 (1978) )). But the Constitution does not require that a jury be able to give effect to mitigating evidence in every conceivable manner in which the evidence may be relevant. Johnson , supra , at 372. The only question in this case is whether reasonable jurists would find the District Courts assessment that Tennards evidence of low intelligence was within the effective reach of the jury via the Texas special issues debatable or wrong.
The Court concludes that [t]he relationship between the special issues and Tennards low IQ evidence has the same essential features as the relationship between the special issues and Penrys mental retardation evidence. Ante , at 14. I disagree. The first special issue asked whether Tennard had caused the death of the victim deliberately and with the reasonable expectation that the death of the deceased or another would result. Ante , at 2. As the Court of Criminal Appeals of Texas noted and the District Court agreed, the mitigating evidence of Tennards low intelligence could be given effect by the jury through this deliberateness special issue. It does not follow from the Courts conclusion in Penry I that mental retardation had relevance to Penrys moral culpability beyond the scope of the deliberateness special issue that evidence of low intelligence has the same relevance. And, after Johnson and Graham , it is clear that the question is simply whether the jury could give some effect to the mitigating evidence through the special issues. Johnson , supra , at 369 (rejecting the petitioners claim that a special instruction was necessary because his evidence of youth had relevance outside the special issue framework); Graham , supra , at 476477 ([R]eading Penry [I] as petitioner urgesand thereby holding that a defendant is entitled to special instructions whenever he can offer mitigating evidence that has some arguable relevance beyond the special issueswould be to require in all cases that a fourth special issue be put to the jury: Does any mitigating evidence before you, whether or not relevant to the [other special issues], lead you to believe that the death penalty should not be imposed? The [ Franklin v. Lynaugh, 487 U. S. 164 (1988) ], plurality rejected precisely this contention, finding it irreconcilable with the Courts holding in Jurek, [487 U. S., at 180, n. 10], and we affirm that conclusion today.)
The second special issue asked [i]s there a probability that the defendant … would commit criminal acts of violence that would constitute a continuing threat to society? Ante, at 2. Here, too, this case is very different from Penry I , where there was expert medical testimony that Penrys condition prevented him from learning from experience. 492 U. S., at 308309. Here, no such evidence was presented. Given the evidence, the jury could have concluded that low intelligence meant that Tennard is a slow learner, but with the proper instruction, he could conform his behavior to social norms. It also could have concluded, as the Court of Criminal Appeals of Texas noted, that Tennard was a follower rather than a leader, App. 91, and that he again could conform his behavior in the proper environment. In either case contrary to Penry I the evidence could be given mitigating effect in the second special issue. In short, low intelligence is not the same as mental retardation and does not necessarily create the Penry I two-edged sword. 492 U. S., at 324. The two should not be summarily bracketed together.
Because I do not think that reasonable jurists would disagree with the District Courts conclusion that the jury in this case had the ability to give mitigating effect to Tennards evidence of low intelligence through the first and second special issues, I dissent.
Dissent
ROBERT JAMES TENNARD, PETITIONER
v.
DOUG
DRETKE, DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, CORRECTIONAL
INSTITUTIONS DIVISION
Chief Justice Rehnquist , dissenting.
A certificate of appealability may only issue if the applicant has made a substantial showing of the denial of a constitutional right, 28 U. S. C. §2253(c)(2). Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy §2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district courts assessment of the constitutional claims debatable or wrong. Slack v. McDaniel, 529 U. S. 473, 484 (2000) . Because I believe that reasonable jurists would not find the District Courts assessment of the constitutional claims debatable or wrong , I dissent.
The District Court conducted the proper inquiry by examining whether Tennards evidence of low intelligence was within the effective reach of the jury. App. 128 (quoting Johnson v. Texas, 509 U. S. 350, 375 (1993) ). And the District Court came to the correct result; that is, the special issues allowed the jury to give some mitigating effect to Tennards evidence of low intelligence. Id. , at 369; Graham v. Collins , 506 U. S. 461, 475 (1993) .
In Jurek v. Texas, 428 U. S. 262 (1976) , this Court held that the Texas special issues system, as a general matter, is constitutional. The special issues system guides the jurys consideration of mitigating evidence at sentencing. We have stated:
Although [ Lockett v. Ohio, 438 U. S. 586 (1978) ,] and [ Eddings v. Oklahoma, 455 U. S. 104 (1982) ,] prevent a State from placing relevant mitigating evidence beyond the effective reach of the sentencer, Graham , supra , at 475, those cases and others in that decisional line do not bar a State from guiding the sentencers consideration of mitigating evidence. Indeed, we have held that there is no … constitutional requirement of unfettered sentencing discretion in the jury, and States are free to structure and shape consideration of mitigating evidence in an effort to achieve a more rational and equitable administration of the death penalty. Boyde v. California, 494 U. S. 370, 377 (1990) (quoting Franklin v. Lynaugh, 487 U. S. 164, 181 (1988) (plurality opinion)). Johnson , supra , at 362.
In Penry v. Lynaugh, 492 U. S. 302 (1989) (Penry I) , the Court concluded that the Texas special issues were too limited to give effect to Penrys mitigating evidence of his mental retardation and severe childhood abuse. But we have noted that Penry I did not effec[t] a sea change in this Courts view of the constitutionality of the former Texas death penalty statute, Graham , supra , at 474. Tennards evidence of low intelligence simply does not present the same difficulty that Penrys evidence did.
There is no dispute that Tennards low intelligence is a relevant mitigating circumstance, and that the sentencing jury must be allowed to consider that mitigating evidence. See, e.g., Eddings v. Oklahoma , 455 U. S. 104, 110 (1982) ( [T]he sentencer … [may] not be precluded from considering, as a mitigating factor, any aspect of a defendants character or record and any of the circumstances of the offense (emphasis deleted) (quoting Lockett v. Ohio , 438 U. S. 586, 604 (1978) )). But the Constitution does not require that a jury be able to give effect to mitigating evidence in every conceivable manner in which the evidence may be relevant. Johnson , supra , at 372. The only question in this case is whether reasonable jurists would find the District Courts assessment that Tennards evidence of low intelligence was within the effective reach of the jury via the Texas special issues debatable or wrong.
The Court concludes that [t]he relationship between the special issues and Tennards low IQ evidence has the same essential features as the relationship between the special issues and Penrys mental retardation evidence. Ante , at 14. I disagree. The first special issue asked whether Tennard had caused the death of the victim deliberately and with the reasonable expectation that the death of the deceased or another would result. Ante , at 2. As the Court of Criminal Appeals of Texas noted and the District Court agreed, the mitigating evidence of Tennards low intelligence could be given effect by the jury through this deliberateness special issue. It does not follow from the Courts conclusion in Penry I that mental retardation had relevance to Penrys moral culpability beyond the scope of the deliberateness special issue that evidence of low intelligence has the same relevance. And, after Johnson and Graham , it is clear that the question is simply whether the jury could give some effect to the mitigating evidence through the special issues. Johnson , supra , at 369 (rejecting the petitioners claim that a special instruction was necessary because his evidence of youth had relevance outside the special issue framework); Graham , supra , at 476477 ([R]eading Penry [I] as petitioner urgesand thereby holding that a defendant is entitled to special instructions whenever he can offer mitigating evidence that has some arguable relevance beyond the special issueswould be to require in all cases that a fourth special issue be put to the jury: Does any mitigating evidence before you, whether or not relevant to the [other special issues], lead you to believe that the death penalty should not be imposed? The [ Franklin v. Lynaugh, 487 U. S. 164 (1988) ], plurality rejected precisely this contention, finding it irreconcilable with the Courts holding in Jurek, [487 U. S., at 180, n. 10], and we affirm that conclusion today.)
The second special issue asked [i]s there a probability that the defendant … would commit criminal acts of violence that would constitute a continuing threat to society? Ante, at 2. Here, too, this case is very different from Penry I , where there was expert medical testimony that Penrys condition prevented him from learning from experience. 492 U. S., at 308309. Here, no such evidence was presented. Given the evidence, the jury could have concluded that low intelligence meant that Tennard is a slow learner, but with the proper instruction, he could conform his behavior to social norms. It also could have concluded, as the Court of Criminal Appeals of Texas noted, that Tennard was a follower rather than a leader, App. 91, and that he again could conform his behavior in the proper environment. In either case contrary to Penry I the evidence could be given mitigating effect in the second special issue. In short, low intelligence is not the same as mental retardation and does not necessarily create the Penry I two-edged sword. 492 U. S., at 324. The two should not be summarily bracketed together.
Because I do not think that reasonable jurists would disagree with the District Courts conclusion that the jury in this case had the ability to give mitigating effect to Tennards evidence of low intelligence through the first and second special issues, I dissent.
Dissent
ROBERT JAMES TENNARD, PETITIONER
v.
DOUG
DRETKE, DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, CORRECTIONAL
INSTITUTIONS DIVISION
Chief Justice Rehnquist , dissenting.
A certificate of appealability may only issue if the applicant has made a substantial showing of the denial of a constitutional right, 28 U. S. C. §2253(c)(2). Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy §2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district courts assessment of the constitutional claims debatable or wrong. Slack v. McDaniel, 529 U. S. 473, 484 (2000) . Because I believe that reasonable jurists would not find the District Courts assessment of the constitutional claims debatable or wrong , I dissent.
The District Court conducted the proper inquiry by examining whether Tennards evidence of low intelligence was within the effective reach of the jury. App. 128 (quoting Johnson v. Texas, 509 U. S. 350, 375 (1993) ). And the District Court came to the correct result; that is, the special issues allowed the jury to give some mitigating effect to Tennards evidence of low intelligence. Id. , at 369; Graham v. Collins , 506 U. S. 461, 475 (1993) .
In Jurek v. Texas, 428 U. S. 262 (1976) , this Court held that the Texas special issues system, as a general matter, is constitutional. The special issues system guides the jurys consideration of mitigating evidence at sentencing. We have stated:
Although [ Lockett v. Ohio, 438 U. S. 586 (1978) ,] and [ Eddings v. Oklahoma, 455 U. S. 104 (1982) ,] prevent a State from placing relevant mitigating evidence beyond the effective reach of the sentencer, Graham , supra , at 475, those cases and others in that decisional line do not bar a State from guiding the sentencers consideration of mitigating evidence. Indeed, we have held that there is no … constitutional requirement of unfettered sentencing discretion in the jury, and States are free to structure and shape consideration of mitigating evidence in an effort to achieve a more rational and equitable administration of the death penalty. Boyde v. California, 494 U. S. 370, 377 (1990) (quoting Franklin v. Lynaugh, 487 U. S. 164, 181 (1988) (plurality opinion)). Johnson , supra , at 362.
In Penry v. Lynaugh, 492 U. S. 302 (1989) (Penry I) , the Court concluded that the Texas special issues were too limited to give effect to Penrys mitigating evidence of his mental retardation and severe childhood abuse. But we have noted that Penry I did not effec[t] a sea change in this Courts view of the constitutionality of the former Texas death penalty statute, Graham , supra , at 474. Tennards evidence of low intelligence simply does not present the same difficulty that Penrys evidence did.
There is no dispute that Tennards low intelligence is a relevant mitigating circumstance, and that the sentencing jury must be allowed to consider that mitigating evidence. See, e.g., Eddings v. Oklahoma , 455 U. S. 104, 110 (1982) ( [T]he sentencer … [may] not be precluded from considering, as a mitigating factor, any aspect of a defendants character or record and any of the circumstances of the offense (emphasis deleted) (quoting Lockett v. Ohio , 438 U. S. 586, 604 (1978) )). But the Constitution does not require that a jury be able to give effect to mitigating evidence in every conceivable manner in which the evidence may be relevant. Johnson , supra , at 372. The only question in this case is whether reasonable jurists would find the District Courts assessment that Tennards evidence of low intelligence was within the effective reach of the jury via the Texas special issues debatable or wrong.
The Court concludes that [t]he relationship between the special issues and Tennards low IQ evidence has the same essential features as the relationship between the special issues and Penrys mental retardation evidence. Ante , at 14. I disagree. The first special issue asked whether Tennard had caused the death of the victim deliberately and with the reasonable expectation that the death of the deceased or another would result. Ante , at 2. As the Court of Criminal Appeals of Texas noted and the District Court agreed, the mitigating evidence of Tennards low intelligence could be given effect by the jury through this deliberateness special issue. It does not follow from the Courts conclusion in Penry I that mental retardation had relevance to Penrys moral culpability beyond the scope of the deliberateness special issue that evidence of low intelligence has the same relevance. And, after Johnson and Graham , it is clear that the question is simply whether the jury could give some effect to the mitigating evidence through the special issues. Johnson , supra , at 369 (rejecting the petitioners claim that a special instruction was necessary because his evidence of youth had relevance outside the special issue framework); Graham , supra , at 476477 ([R]eading Penry [I] as petitioner urgesand thereby holding that a defendant is entitled to special instructions whenever he can offer mitigating evidence that has some arguable relevance beyond the special issueswould be to require in all cases that a fourth special issue be put to the jury: Does any mitigating evidence before you, whether or not relevant to the [other special issues], lead you to believe that the death penalty should not be imposed? The [ Franklin v. Lynaugh, 487 U. S. 164 (1988) ], plurality rejected precisely this contention, finding it irreconcilable with the Courts holding in Jurek, [487 U. S., at 180, n. 10], and we affirm that conclusion today.)
The second special issue asked [i]s there a probability that the defendant … would commit criminal acts of violence that would constitute a continuing threat to society? Ante, at 2. Here, too, this case is very different from Penry I , where there was expert medical testimony that Penrys condition prevented him from learning from experience. 492 U. S., at 308309. Here, no such evidence was presented. Given the evidence, the jury could have concluded that low intelligence meant that Tennard is a slow learner, but with the proper instruction, he could conform his behavior to social norms. It also could have concluded, as the Court of Criminal Appeals of Texas noted, that Tennard was a follower rather than a leader, App. 91, and that he again could conform his behavior in the proper environment. In either case contrary to Penry I the evidence could be given mitigating effect in the second special issue. In short, low intelligence is not the same as mental retardation and does not necessarily create the Penry I two-edged sword. 492 U. S., at 324. The two should not be summarily bracketed together.
Because I do not think that reasonable jurists would disagree with the District Courts conclusion that the jury in this case had the ability to give mitigating effect to Tennards evidence of low intelligence through the first and second special issues, I dissent.
Dissent
ROBERT JAMES TENNARD, PETITIONER
v.
DOUG
DRETKE, DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, CORRECTIONAL
INSTITUTIONS DIVISION
Chief Justice Rehnquist , dissenting.
A certificate of appealability may only issue if the applicant has made a substantial showing of the denial of a constitutional right, 28 U. S. C. §2253(c)(2). Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy §2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district courts assessment of the constitutional claims debatable or wrong. Slack v. McDaniel, 529 U. S. 473, 484 (2000) . Because I believe that reasonable jurists would not find the District Courts assessment of the constitutional claims debatable or wrong , I dissent.
The District Court conducted the proper inquiry by examining whether Tennards evidence of low intelligence was within the effective reach of the jury. App. 128 (quoting Johnson v. Texas, 509 U. S. 350, 375 (1993) ). And the District Court came to the correct result; that is, the special issues allowed the jury to give some mitigating effect to Tennards evidence of low intelligence. Id. , at 369; Graham v. Collins , 506 U. S. 461, 475 (1993) .
In Jurek v. Texas, 428 U. S. 262 (1976) , this Court held that the Texas special issues system, as a general matter, is constitutional. The special issues system guides the jurys consideration of mitigating evidence at sentencing. We have stated:
Although [ Lockett v. Ohio, 438 U. S. 586 (1978) ,] and [ Eddings v. Oklahoma, 455 U. S. 104 (1982) ,] prevent a State from placing relevant mitigating evidence beyond the effective reach of the sentencer, Graham , supra , at 475, those cases and others in that decisional line do not bar a State from guiding the sentencers consideration of mitigating evidence. Indeed, we have held that there is no … constitutional requirement of unfettered sentencing discretion in the jury, and States are free to structure and shape consideration of mitigating evidence in an effort to achieve a more rational and equitable administration of the death penalty. Boyde v. California, 494 U. S. 370, 377 (1990) (quoting Franklin v. Lynaugh, 487 U. S. 164, 181 (1988) (plurality opinion)). Johnson , supra , at 362.
In Penry v. Lynaugh, 492 U. S. 302 (1989) (Penry I) , the Court concluded that the Texas special issues were too limited to give effect to Penrys mitigating evidence of his mental retardation and severe childhood abuse. But we have noted that Penry I did not effec[t] a sea change in this Courts view of the constitutionality of the former Texas death penalty statute, Graham , supra , at 474. Tennards evidence of low intelligence simply does not present the same difficulty that Penrys evidence did.
There is no dispute that Tennards low intelligence is a relevant mitigating circumstance, and that the sentencing jury must be allowed to consider that mitigating evidence. See, e.g., Eddings v. Oklahoma , 455 U. S. 104, 110 (1982) ( [T]he sentencer … [may] not be precluded from considering, as a mitigating factor, any aspect of a defendants character or record and any of the circumstances of the offense (emphasis deleted) (quoting Lockett v. Ohio , 438 U. S. 586, 604 (1978) )). But the Constitution does not require that a jury be able to give effect to mitigating evidence in every conceivable manner in which the evidence may be relevant. Johnson , supra , at 372. The only question in this case is whether reasonable jurists would find the District Courts assessment that Tennards evidence of low intelligence was within the effective reach of the jury via the Texas special issues debatable or wrong.
The Court concludes that [t]he relationship between the special issues and Tennards low IQ evidence has the same essential features as the relationship between the special issues and Penrys mental retardation evidence. Ante , at 14. I disagree. The first special issue asked whether Tennard had caused the death of the victim deliberately and with the reasonable expectation that the death of the deceased or another would result. Ante , at 2. As the Court of Criminal Appeals of Texas noted and the District Court agreed, the mitigating evidence of Tennards low intelligence could be given effect by the jury through this deliberateness special issue. It does not follow from the Courts conclusion in Penry I that mental retardation had relevance to Penrys moral culpability beyond the scope of the deliberateness special issue that evidence of low intelligence has the same relevance. And, after Johnson and Graham , it is clear that the question is simply whether the jury could give some effect to the mitigating evidence through the special issues. Johnson , supra , at 369 (rejecting the petitioners claim that a special instruction was necessary because his evidence of youth had relevance outside the special issue framework); Graham , supra , at 476477 ([R]eading Penry [I] as petitioner urgesand thereby holding that a defendant is entitled to special instructions whenever he can offer mitigating evidence that has some arguable relevance beyond the special issueswould be to require in all cases that a fourth special issue be put to the jury: Does any mitigating evidence before you, whether or not relevant to the [other special issues], lead you to believe that the death penalty should not be imposed? The [ Franklin v. Lynaugh, 487 U. S. 164 (1988) ], plurality rejected precisely this contention, finding it irreconcilable with the Courts holding in Jurek, [487 U. S., at 180, n. 10], and we affirm that conclusion today.)
The second special issue asked [i]s there a probability that the defendant … would commit criminal acts of violence that would constitute a continuing threat to society? Ante, at 2. Here, too, this case is very different from Penry I , where there was expert medical testimony that Penrys condition prevented him from learning from experience. 492 U. S., at 308309. Here, no such evidence was presented. Given the evidence, the jury could have concluded that low intelligence meant that Tennard is a slow learner, but with the proper instruction, he could conform his behavior to social norms. It also could have concluded, as the Court of Criminal Appeals of Texas noted, that Tennard was a follower rather than a leader, App. 91, and that he again could conform his behavior in the proper environment. In either case contrary to Penry I the evidence could be given mitigating effect in the second special issue. In short, low intelligence is not the same as mental retardation and does not necessarily create the Penry I two-edged sword. 492 U. S., at 324. The two should not be summarily bracketed together.
Because I do not think that reasonable jurists would disagree with the District Courts conclusion that the jury in this case had the ability to give mitigating effect to Tennards evidence of low intelligence through the first and second special issues, I dissent.
Dissent
ROBERT JAMES TENNARD, PETITIONER
v.
DOUG
DRETKE, DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, CORRECTIONAL
INSTITUTIONS DIVISION
Chief Justice Rehnquist , dissenting.
A certificate of appealability may only issue if the applicant has made a substantial showing of the denial of a constitutional right, 28 U. S. C. §2253(c)(2). Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy §2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district courts assessment of the constitutional claims debatable or wrong. Slack v. McDaniel, 529 U. S. 473, 484 (2000) . Because I believe that reasonable jurists would not find the District Courts assessment of the constitutional claims debatable or wrong , I dissent.
The District Court conducted the proper inquiry by examining whether Tennards evidence of low intelligence was within the effective reach of the jury. App. 128 (quoting Johnson v. Texas, 509 U. S. 350, 375 (1993) ). And the District Court came to the correct result; that is, the special issues allowed the jury to give some mitigating effect to Tennards evidence of low intelligence. Id. , at 369; Graham v. Collins , 506 U. S. 461, 475 (1993) .
In Jurek v. Texas, 428 U. S. 262 (1976) , this Court held that the Texas special issues system, as a general matter, is constitutional. The special issues system guides the jurys consideration of mitigating evidence at sentencing. We have stated:
Although [ Lockett v. Ohio, 438 U. S. 586 (1978) ,] and [ Eddings v. Oklahoma, 455 U. S. 104 (1982) ,] prevent a State from placing relevant mitigating evidence beyond the effective reach of the sentencer, Graham , supra , at 475, those cases and others in that decisional line do not bar a State from guiding the sentencers consideration of mitigating evidence. Indeed, we have held that there is no … constitutional requirement of unfettered sentencing discretion in the jury, and States are free to structure and shape consideration of mitigating evidence in an effort to achieve a more rational and equitable administration of the death penalty. Boyde v. California, 494 U. S. 370, 377 (1990) (quoting Franklin v. Lynaugh, 487 U. S. 164, 181 (1988) (plurality opinion)). Johnson , supra , at 362.
In Penry v. Lynaugh, 492 U. S. 302 (1989) (Penry I) , the Court concluded that the Texas special issues were too limited to give effect to Penrys mitigating evidence of his mental retardation and severe childhood abuse. But we have noted that Penry I did not effec[t] a sea change in this Courts view of the constitutionality of the former Texas death penalty statute, Graham , supra , at 474. Tennards evidence of low intelligence simply does not present the same difficulty that Penrys evidence did.
There is no dispute that Tennards low intelligence is a relevant mitigating circumstance, and that the sentencing jury must be allowed to consider that mitigating evidence. See, e.g., Eddings v. Oklahoma , 455 U. S. 104, 110 (1982) ( [T]he sentencer … [may] not be precluded from considering, as a mitigating factor, any aspect of a defendants character or record and any of the circumstances of the offense (emphasis deleted) (quoting Lockett v. Ohio , 438 U. S. 586, 604 (1978) )). But the Constitution does not require that a jury be able to give effect to mitigating evidence in every conceivable manner in which the evidence may be relevant. Johnson , supra , at 372. The only question in this case is whether reasonable jurists would find the District Courts assessment that Tennards evidence of low intelligence was within the effective reach of the jury via the Texas special issues debatable or wrong.
The Court concludes that [t]he relationship between the special issues and Tennards low IQ evidence has the same essential features as the relationship between the special issues and Penrys mental retardation evidence. Ante , at 14. I disagree. The first special issue asked whether Tennard had caused the death of the victim deliberately and with the reasonable expectation that the death of the deceased or another would result. Ante , at 2. As the Court of Criminal Appeals of Texas noted and the District Court agreed, the mitigating evidence of Tennards low intelligence could be given effect by the jury through this deliberateness special issue. It does not follow from the Courts conclusion in Penry I that mental retardation had relevance to Penrys moral culpability beyond the scope of the deliberateness special issue that evidence of low intelligence has the same relevance. And, after Johnson and Graham , it is clear that the question is simply whether the jury could give some effect to the mitigating evidence through the special issues. Johnson , supra , at 369 (rejecting the petitioners claim that a special instruction was necessary because his evidence of youth had relevance outside the special issue framework); Graham , supra , at 476477 ([R]eading Penry [I] as petitioner urgesand thereby holding that a defendant is entitled to special instructions whenever he can offer mitigating evidence that has some arguable relevance beyond the special issueswould be to require in all cases that a fourth special issue be put to the jury: Does any mitigating evidence before you, whether or not relevant to the [other special issues], lead you to believe that the death penalty should not be imposed? The [ Franklin v. Lynaugh, 487 U. S. 164 (1988) ], plurality rejected precisely this contention, finding it irreconcilable with the Courts holding in Jurek, [487 U. S., at 180, n. 10], and we affirm that conclusion today.)
The second special issue asked [i]s there a probability that the defendant … would commit criminal acts of violence that would constitute a continuing threat to society? Ante, at 2. Here, too, this case is very different from Penry I , where there was expert medical testimony that Penrys condition prevented him from learning from experience. 492 U. S., at 308309. Here, no such evidence was presented. Given the evidence, the jury could have concluded that low intelligence meant that Tennard is a slow learner, but with the proper instruction, he could conform his behavior to social norms. It also could have concluded, as the Court of Criminal Appeals of Texas noted, that Tennard was a follower rather than a leader, App. 91, and that he again could conform his behavior in the proper environment. In either case contrary to Penry I the evidence could be given mitigating effect in the second special issue. In short, low intelligence is not the same as mental retardation and does not necessarily create the Penry I two-edged sword. 492 U. S., at 324. The two should not be summarily bracketed together.
Because I do not think that reasonable jurists would disagree with the District Courts conclusion that the jury in this case had the ability to give mitigating effect to Tennards evidence of low intelligence through the first and second special issues, I dissent.


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WITNESS LIST Natural Resources Committee February 13, 2001 - 2:00P SB 267 ON: Behrens, Michael Assistant Executive Director (Texas Department of Transportation), Austin, TX Gadbois, Glenn Director Transportation Programs (Texas Citizen Fund), Austin, TX MacRae, John Wetlands Conservation Program Leader (Texas Parks and Wildlife Department), Austin, TX Sybert, Brian Natural Resources Director (Sierra Club, Lone Star Chapter), Austin, TX Registering, but not testifying: On: Bohuslav, Ken Deputy Director-Environmental Division (Texas Department of Transportation), Austin, TX Boydston, Kathy Program Leader, Wildlife Habitat Assesme (Texas Parks and Wildlife Department), Austin, TX SB 289 FOR: Parker, Linda Vice President (Small Hydro of Texas, Inc.), Austin, TX ON: Silverstein, Alison Advisor to Chairman Pat Wood, III (Public Utility Commission of Texas), Austin, TX Registering, but not testifying: On: Sidnell, Jennifer Asst. Div. Dir. Feild Operations (Texas Natural Resources Conservation Commission), Austin, TX SB 404 FOR: Martch, Marie Director (Clearwater Underground Water Conservation District), Austin, TX SB 416 ON: Behrens, Michael Assistant Executive Director (TxDOT), Austin, TX Bohuslav, Ken Deputy Director-Environmental Division (Texas Department of Transportation), Austin, TX Sybert, Brian Natural Resources Director (Sierra Club, Lone Star Chapter), Austin, TX Registering, but not testifying: On: Boydston, Kathy Program Leader-Wildlife Habitat Assesmen (Texas Parks and Wildlife Department), Austin, TX MacRae, John Wetlands Conservation Program Leader (Texas Parks and Wildlife Department), Austin, TX